EN BANC
BAUTISTA, DEFENSE
January 12, 2016
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO
"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN,
PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L.
ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL
PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT
OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY
ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA
PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND
CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS,
ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L.
TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO
HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON,
MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN),
REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA,
BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO,
SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G.
BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES
CHIEF OF STAFF GENERAL EMMANUEL T.
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR
LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA,
DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO
BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC
ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR
THE PHILIPPINES ON EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON,
ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO
USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA
FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the
Enhanced Defense Cooperation Agreement (EDCA) between the
Republic of the Philippines and the United States of America (U.S.).
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction when they entered into EDCA
with the U.S.,2 claiming that the instrument violated multiple constitutional
provisions.3 In reply, respondents argue that petitioners lack standing to
bring the suit. To support the legality of their actions, respondents invoke
the 1987 Constitution, treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the
outset the basic parameters of the constitutional powers and roles of the
President and the Senate in respect of the above issues. A more detailed
discussion of these powers and roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE
PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive
Power in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang
buong katapatan at sigasig ang aking mga tungkulin bilang Pangulo (o
Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas,
pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad
ang mga batas nito, magiging makatarungan sa bawat tao, at itatalaga
ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng
Pilipinas ayon sa Saligang Batas5
The 1987 Constitution has "vested the executive power in the President
of the Republic of the Philippines."6 While the vastness of the executive
power that has been consolidated in the person of the President cannot
be expressed fully in one provision, the Constitution has stated the prime
duty of the government, of which the President is the head:
The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.7
(Emphases supplied)
B. The duty to protect the territory and the citizens of the
Philippines, the power to call upon the people to defend the State,
and the President as Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly
and effectively throughout the whole territory of the Philippines in
accordance with the constitutional provision on national territory. Hence,
the President of the Philippines, as the sole repository of executive
power, is the guardian of the Philippine archipelago, including all the
islands and waters embraced therein and all other territories over which it
has sovereignty or jurisdiction. These territories consist of its terrestrial,
fluvial, and aerial domains; including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas; and the waters
around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions.8
To carry out this important duty, the President is equipped with authority
over the Armed Forces of the Philippines (AFP),9 which is the protector of
the people and the state. The AFP's role is to secure the sovereignty of
the State and the integrity of the national territory.10 In addition, the
Executive is constitutionally empowered to maintain peace and order;
protect life, liberty, and property; and promote the general welfare.11
In recognition of these powers, Congress has specified that the President
must oversee, ensure, and reinforce our defensive capabilities against
external and internal threats12 and, in the same vein, ensure that the
country is adequately prepared for all national and local emergencies
arising from natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate,
the President may call out the AFP to prevent or suppress instances of
lawless violence, invasion or rebellion,14 but not suspend the privilege of
the writ of habeas corpus for a period exceeding 60 days, or place the
Philippines or any part thereof under martial law exceeding that same
span. In the exercise of these powers, the President is also duty-bound to
submit a report to Congress, in person or in writing, within 48 hours from
the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus; and Congress may in turn revoke the proclamation
or suspension. The same provision provides for the Supreme Court's
review of the factual basis for the proclamation or suspension, as well as
the promulgation of the decision within 30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the
conduct of foreign relations.15 Since every state has the capacity to
interact with and engage in relations with other sovereign states,16 it is but
logical that every state must vest in an agent the authority to represent its
interests to those other sovereign states.
The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in
times of war. It can only be entrusted to that department of government
which can act on the basis of the best available information and can
decide with decisiveness. x x x It is also the President who possesses the
most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to
ultra-sensitive military intelligence data. In fine, the presidential role in
foreign affairs is dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign affairs. The regularity,
nay, validity of his actions are adjudged under less stringent standards,
lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally
undesirable consequences.17
The role of the President in foreign affairs is qualified by the Constitution
in that the Chief Executive must give paramount importance to the
sovereignty of the nation, the integrity of its territory, its interest, and the
right of the sovereign Filipino people to self-determination.18 In specific
provisions, the President's power is also limited, or at least shared, as in
Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article
VII on foreign loans, treaties, and international agreements; Sections 4(2)
and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections
4 and 25 of Article XVIII on treaties and international agreements entered
into prior to the Constitution and on the presence of foreign military
troops, bases, or facilities.
D. The relationship between the two major presidential functions
and the role of the Senate
Clearly, the power to defend the State and to act as its representative in
the international sphere inheres in the person of the President. This
power, however, does not crystallize into absolute discretion to craft
whatever instrument the Chief Executive so desires. As previously
mentioned, the Senate has a role in ensuring that treaties or international
agreements the President enters into, as contemplated in Section 21 of
Article VII of the Constitution, obtain the approval of two-thirds of its
members.
Previously, treaties under the 1973 Constitution required ratification by a
majority of the Batasang Pambansa,19 except in instances wherein the
President "may enter into international treaties or agreements as the
national welfare and interest may require."20 This left a large margin of
discretion that the President could use to bypass the Legislature
altogether. This was a departure from the 1935 Constitution, which
explicitly gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the Senate.21 The 1987
Constitution returned the Senate's power22 and, with it, the legislative's
traditional role in foreign affairs.23
The responsibility of the President when it comes to treaties and
international agreements under the present Constitution is therefore
shared with the Senate. This shared role, petitioners claim, is bypassed
by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases, and
the transition to Philippine independence
The presence of the U.S. military forces in the country can be traced to
their pivotal victory in the 1898 Battle of Manila Bay during the Spanish-
American War.24 Spain relinquished its sovereignty over the Philippine
Islands in favor of the U.S. upon its formal surrender a few months later.25
By 1899, the Americans had consolidated a military administration in the
archipelago.26
When it became clear that the American forces intended to impose
colonial control over the Philippine Islands, General Emilio Aguinaldo
immediately led the Filipinos into an all-out war against the U.S.27 The
Filipinos were ultimately defeated in the Philippine-American War, which
lasted until 1902 and led to the downfall of the first Philippine Republic.28
The Americans henceforth began to strengthen their foothold in the
country.29 They took over and expanded the former Spanish Naval Base
in Subic Bay, Zambales, and put up a cavalry post called Fort
Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained
ground, the U.S. manifested the desire to maintain military bases and
armed forces in the country.31 The U.S. Congress later enacted the Hare-
Hawes-Cutting Act of 1933, which required that the proposed constitution
of an independent Philippines recognize the right of the U.S. to maintain
the latter's armed forces and military bases.32 The Philippine Legislature
rejected that law, as it also gave the U.S. the power to unilaterally
designate any part of Philippine territory as a permanent military or naval
base of the U.S. within two years from complete independence.33
The U.S. Legislature subsequently crafted another law called the
Tydings-McDuffie Act or the Philippine Independence Act of 1934.
Compared to the old Hare-Hawes-Cutting Act, the new law provided for
the surrender to the Commonwealth Government of "all military and other
reservations" of the U.S. government in the Philippines, except "naval
reservations and refueling stations."34 Furthermore, the law authorized the
U.S. President to enter into negotiations for the adjustment and
settlement of all questions relating to naval reservations and fueling
stations within two years after the Philippines would have gained
independence.35 Under the Tydings-McDuffie Act, the U.S. President
would proclaim the American withdrawal and surrender of sovereignty
over the islands 10 years after the inauguration of the new government in
the Philippines.36 This law eventually led to the promulgation of the 1935
Philippine Constitution.
The original plan to surrender the military bases changed.37 At the height
of the Second World War, the Philippine and the U.S. Legislatures each
passed resolutions authorizing their respective Presidents to negotiate
the matter of retaining military bases in the country after the planned
withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into
the Treaty of General Relations, in which the U.S. relinquished all control
and sovereignty over the Philippine Islands, except the areas that would
be covered by the American military bases in the country.39 This treaty
eventually led to the creation of the post-colonial legal regime on which
would hinge the continued presence of U.S. military forces until 1991: the
Military Bases Agreement (MBA) of 1947, the Military Assistance
Agreement of 1947, and the Mutual Defense Treaty (MDT) of 1951.40
B. Former legal regime on the presence of U.S. armed forces in the
territory of an independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries
entered into their first military arrangement pursuant to the Treaty of
General Relations - the 1947 MBA.41 The Senate concurred on the
premise of "mutuality of security interest,"42 which provided for the
presence and operation of 23 U.S. military bases in the Philippines for 99
years or until the year 2046.43 The treaty also obliged the Philippines to
negotiate with the U.S. to allow the latter to expand the existing bases or
to acquire new ones as military necessity might require.44
A number of significant amendments to the 1947 MBA were made.45 With
respect to its duration, the parties entered into the Ramos-Rusk
Agreement of 1966, which reduced the term of the treaty from 99 years to
a total of 44 years or until 1991.46 Concerning the number of U.S. military
bases in the country, the Bohlen-Serrano Memorandum of Agreement
provided for the return to the Philippines of 17 U.S. military bases
covering a total area of 117,075 hectares.47 Twelve years later, the U.S.
returned Sangley Point in Cavite City through an exchange of notes.48
Then, through the Romulo-Murphy Exchange of Notes of 1979, the
parties agreed to the recognition of Philippine sovereignty over Clark and
Subic Bases and the reduction of the areas that could be used by the
U.S. military.49 The agreement also provided for the mandatory review of
the treaty every five years.50 In 1983, the parties revised the 1947 MBA
through the Romualdez-Armacost Agreement.51 The revision pertained to
the operational use of the military bases by the U.S. government within
the context of Philippine sovereignty,52 including the need for prior
consultation with the Philippine government on the former' s use of the
bases for military combat operations or the establishment of long-range
missiles.53
Pursuant to the legislative authorization granted under Republic Act No.
9,54 the President also entered into the 1947 Military Assistance
Agreement55 with the U.S. This executive agreement established the
conditions under which U.S. military assistance would be granted to the
Philippines,56 particularly the provision of military arms, ammunitions,
supplies, equipment, vessels, services, and training for the latter's
defense forces.57 An exchange of notes in 1953 made it clear that the
agreement would remain in force until terminated by any of the parties.58
To further strengthen their defense and security relationship,59 the
Philippines and the U.S. next entered into the MDT in 1951. Concurred in
by both the Philippine60 and the U.S.61 Senates, the treaty has two main
features: first, it allowed for mutual assistance in maintaining and
developing their individual and collective capacities to resist an armed
attack;62 and second, it provided for their mutual self-defense in the event
of an armed attack against the territory of either party.63 The treaty was
premised on their recognition that an armed attack on either of them
would equally be a threat to the security of the other.64
C. Current legal regime on the presence of U.S. armed forces in the
country
In view of the impending expiration of the 1947 MBA in 1991, the
Philippines and the U.S. negotiated for a possible renewal of their
defense and security relationship.65 Termed as the Treaty of Friendship,
Cooperation and Security, the countries sought to recast their military ties
by providing a new framework for their defense cooperation and the use
of Philippine installations.66 One of the proposed provisions included an
arrangement in which U.S. forces would be granted the use of certain
installations within the Philippine naval base in Subic.67 On 16 September
1991, the Senate rejected the proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting paucity of
any formal agreement dealing with the treatment of U.S. personnel in the
Philippines led to the suspension in 1995 of large-scale joint military
exercises.69 In the meantime, the respective governments of the two
countries agreed70 to hold joint exercises at a substantially reduced level.71
The military arrangements between them were revived in 1999 when they
concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has
laid down the regulatory mechanism for the treatment of U.S. military and
civilian personnel visiting the country.74 It contains provisions on the entry
and departure of U.S. personnel; the purpose, extent, and limitations of
their activities; criminal and disciplinary jurisdiction; the waiver of certain
claims; the importation and exportation of equipment, materials, supplies,
and other pieces of property owned by the U.S. government; and the
movement of U.S. military vehicles, vessels, and aircraft into and within
the country.75 The Philippines and the U.S. also entered into a second
counterpart agreement (VFA II), which in turn regulated the treatment of
Philippine military and civilian personnel visiting the U.S.76 The Philippine
Senate concurred in the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started
arriving in Mindanao to take part in joint military exercises with their
Filipino counterparts.78 Called Balikatan, these exercises involved
trainings aimed at simulating joint military maneuvers pursuant to the
MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual
Logistics Support Agreement to "further the interoperability, readiness,
and effectiveness of their respective military forces"80 in accordance with
the MDT, the Military Assistance Agreement of 1953, and the VFA.81 The
new agreement outlined the basic terms, conditions, and procedures for
facilitating the reciprocal provision of logistics support, supplies, and
services between the military forces of the two countries.82 The phrase
"logistics support and services" includes billeting, operations support,
construction and use of temporary structures, and storage services
during an approved activity under the existing military arrangements.83
Already extended twice, the agreement will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct
activities within certain "Agreed Locations" in the country. It was not
transmitted to the Senate on the executive's understanding that to do so
was no longer necessary.85 Accordingly, in June 2014, the Department of
Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal requirements for the
agreement to enter into force in the two countries.86
According to the Philippine government, the conclusion of EDCA was the
result of intensive and comprehensive negotiations in the course of
almost two years.87 After eight rounds of negotiations, the Secretary of
National Defense and the U.S. Ambassador to the Philippines signed the
agreement on 28 April 2014.88 President Benigno S. Aquino III ratified
EDCA on 6 June 2014.89 The OSG clarified during the oral arguments90
that the Philippine and the U.S. governments had yet to agree formally on
the specific sites of the Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been
in the form of a treaty concurred in by the Senate, not an executive
agreement.
On 10 November 2015, months after the oral arguments were concluded
and the parties ordered to file their respective memoranda, the Senators
adopted Senate Resolution No. (SR) 105.91 The resolution expresses the
"strong sense"92 of the Senators that for EDCA to become valid and
effective, it must first be transmitted to the Senate for deliberation and
concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department
committed grave abuse of discretion in entering into EDCA in the form of
an executive agreement. For this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review
are present
B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or
facilities
C. Whether the provisions under EDCA are consistent
with the Constitution, as well as with existing laws
and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been
satisfied
Petitioners are hailing this Court's power of judicial review in order to
strike down EDCA for violating the Constitution. They stress that our
fundamental law is explicit in prohibiting the presence of foreign military
forces in the country, except under a treaty concurred in by the Senate.
Before this Court may begin to analyze the constitutionality or validity of
an official act of a coequal branch of government, however, petitioners
must show that they have satisfied all the essential requisites for judicial
review.93
Distinguished from the general notion of judicial power, the power of
judicial review specially refers to both the authority and the duty of this
Court to determine whether a branch or an instrumentality of government
has acted beyond the scope of the latter's constitutional powers.94 As
articulated in Section 1, Article VIII of the Constitution, the power of
judicial review involves the power to resolve cases in which the questions
concern the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation.95 In Angara v. Electoral Commission,
this Court exhaustively discussed this "moderating power" as part of the
system of checks and balances under the Constitution. In our
fundamental law, the role of the Court is to determine whether a branch
of government has adhered to the specific restrictions and limitations of
the latter's power:96
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual
division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere. But it does not follow from the fact that
the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the
various departments of the government. x x x. And the judiciary in turn,
with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of
the Constitution.
xxxx
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of our
people, acting through their delegates to so provide, that instrument
which is the expression of their sovereignty however limited, has
established a republican government intended to operate and
function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions
provided in the said instrument. The Constitution sets forth in no
uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then
the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any
living constitution. x x x. In our case, this moderating power is granted, if
not expressly, by clear implication from section 2 of article VIII of [the
1935] Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review
under the Constitution. x x x x. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987
Constitution. The scope of that power has been extended to the
determination of whether in matters traditionally considered to be within
the sphere of appreciation of another branch of government, an exercise
of discretion has been attended with grave abuse.97 The expansion of this
power has made the political question doctrine "no longer the
insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from
judicial inquiry or review."98
This moderating power, however, must be exercised carefully and only if
it cannot be completely avoided. We stress that our Constitution is so
incisively designed that it identifies the spheres of expertise within which
the different branches of government shall function and the questions of
policy that they shall resolve.99 Since the power of judicial review involves
the delicate exercise of examining the validity or constitutionality of an act
of a coequal branch of government, this Court must continually exercise
restraint to avoid the risk of supplanting the wisdom of the constitutionally
appointed actor with that of its own.100
Even as we are left with no recourse but to bare our power to check an
act of a coequal branch of government - in this case the executive - we
must abide by the stringent requirements for the exercise of that power
under the Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the power of
judicial review as enunciated in the concurring opinion of U.S. Supreme
Court Justice Brandeis in Ashwander v. Tennessee Valley Authority.103
Francisco104 redressed these "pillars" under the following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated
only as required by the facts of the case
3. That judgment may not be sustained on some other
ground
4. That there be actual injury sustained by the party by
reason of the operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of
constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when it
exercises its power of judicial review.105 Guided by these pillars, it may
invoke the power only when the following four stringent requirements are
satisfied: (a) there is an actual case or controversy; (b) petitioners
possess locus standi; (c) the question of constitutionality is raised at the
earliest opportunity; and (d) the issue of constitutionality is the lis mota of
the case.106 Of these four, the first two conditions will be the focus of our
discussion.
1. Petitioners have shown the presence of an actual case or
controversy.
The OSG maintains107 that there is no actual case or controversy that
exists, since the Senators have not been deprived of the opportunity to
invoke the privileges of the institution they are representing. It contends
that the nonparticipation of the Senators in the present petitions only
confirms that even they believe that EDCA is a binding executive
agreement that does not require their concurrence.
It must be emphasized that the Senate has already expressed its position
through SR 105.108 Through the Resolution, the Senate has taken a
position contrary to that of the OSG. As the body tasked to participate in
foreign affairs by ratifying treaties, its belief that EDCA infringes upon its
constitutional role indicates that an actual controversy - albeit brought to
the Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from
the present proceedings as basis for finding that there is no actual case
or controversy before us. We point out that the focus of this requirement
is the ripeness for adjudication of the matter at hand, as opposed to its
being merely conjectural or anticipatory.109 The case must involve a
definite and concrete issue involving real parties with conflicting legal
rights and legal claims admitting of specific relief through a decree
conclusive in nature.110 It should not equate with a mere request for an
opinion or advice on what the law would be upon an abstract,
hypothetical, or contingent state of facts.111 As explained in Angara v.
Electoral Commission:112
[The] power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by
the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions of
wisdom, justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative enactments, not
only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and
legislative departments of the government. (Emphases supplied)
We find that the matter before us involves an actual case or controversy
that is already ripe for adjudication. The Executive Department has
already sent an official confirmation to the U.S. Embassy that "all internal
requirements of the Philippines x x x have already been complied with."113
By this exchange of diplomatic notes, the Executive Department
effectively performed the last act required under Article XII(l) of EDCA
before the agreement entered into force. Section 25, Article XVIII of the
Constitution, is clear that the presence of foreign military forces in the
country shall only be allowed by virtue of a treaty concurred in by the
Senate. Hence, the performance of an official act by the Executive
Department that led to the entry into force of an executive agreement was
sufficient to satisfy the actual case or controversy requirement.
2. While petitioners Saguisag et. al., do not have legal standing, they
nonetheless raise issues involving matters of transcendental
importance.
The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental act have the
right of appearance to bring the matter to the court for adjudication.114
They must show that they have a personal and substantial interest in the
case, such that they have sustained or are in immediate danger of
sustaining, some direct injury as a consequence of the enforcement of
the challenged governmental act.115 Here, "interest" in the question
involved must be material - an interest that is in issue and will be affected
by the official act - as distinguished from being merely incidental or
general.116 Clearly, it would be insufficient to show that the law or any
governmental act is invalid, and that petitioners stand to suffer in some
indefinite way.117 They must show that they have a particular interest in
bringing the suit, and that they have been or are about to be denied some
right or privilege to which they are lawfully entitled, or that they are about
to be subjected to some burden or penalty by reason of the act
complained of.118 The reason why those who challenge the validity of a
law or an international agreement are required to allege the existence of
a personal stake in the outcome of the controversy is "to assure the
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or legislators'
suits; the Senate as a body has the requisite standing, but considering
that it has not formally filed a pleading to join the suit, as it merely
conveyed to the Supreme Court its sense that EDCA needs the Senate's
concurrence to be valid, petitioners continue to suffer from lack of
standing.
In assailing the constitutionality of a governmental act, petitioners suing
as citizens may dodge the requirement of having to establish a direct and
personal interest if they show that the act affects a public right.120 In
arguing that they have legal standing, they claim121 that the case they
have filed is a concerned citizen's suit. But aside from general statements
that the petitions involve the protection of a public right, and that their
constitutional rights as citizens would be violated, they fail to make any
specific assertion of a particular public right that would be violated by the
enforcement of EDCA. For their failure to do so, the present petitions
cannot be considered by the Court as citizens' suits that would
justify a disregard of the aforementioned requirements.
In claiming that they have legal standing as taxpayers, petitioners122 aver
that the implementation of EDCA would result in the unlawful use of
public funds. They emphasize that Article X(1) refers to an appropriation
of funds; and that the agreement entails a waiver of the payment of taxes,
fees, and rentals. During the oral arguments, however, they admitted that
the government had not yet appropriated or actually disbursed public
funds for the purpose of implementing the agreement.123 The OSG, on the
other hand, maintains that petitioners cannot sue as taxpayers.124
Respondent explains that EDCA is neither meant to be a tax measure,
nor is it directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act complained of
directly involves the illegal disbursement of public funds derived from
taxation.125 Here, those challenging the act must specifically show that
they have sufficient interest in preventing the illegal expenditure of public
money, and that they will sustain a direct injury as a result of the
enforcement of the assailed act.126 Applying that principle to this case,
they must establish that EDCA involves the exercise by Congress of its
taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers'
suits. We emphasize that a taxpayers' suit contemplates a situation in
which there is already an appropriation or a disbursement of public
funds.128 A reading of Article X(l) of EDCA would show that there has been
neither an appropriation nor an authorization of disbursement of funds.
The cited provision reads:
All obligations under this Agreement are subject to the availability of
appropriated funds authorized for these purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would require
the disbursement of public funds, the money must come from
appropriated funds that are specifically authorized for this purpose. Under
the agreement, before there can even be a disbursement of public funds,
there must first be a legislative action. Until and unless the Legislature
appropriates funds for EDCA, or unless petitioners can pinpoint a
specific item in the current budget that allows expenditure under the
agreement, we cannot at this time rule that there is in fact an
appropriation or a disbursement of funds that would justify the filing
of a taxpayers' suit.
Petitioners Bayan et al. also claim129 that their co-petitioners who are
party-list representatives have the standing to challenge the act of the
Executive Department, especially if it impairs the constitutional
prerogatives, powers, and privileges of their office. While they admit that
there is no incumbent Senator who has taken part in the present petition,
they nonetheless assert that they also stand to sustain a derivative but
substantial injury as legislators. They argue that under the Constitution,
legislative power is vested in both the Senate and the House of
Representatives; consequently, it is the entire Legislative Department
that has a voice in determining whether or not the presence of foreign
military should be allowed. They maintain that as members of the
Legislature, they have the requisite personality to bring a suit, especially
when a constitutional issue is raised.
The OSG counters130 that petitioners do not have any legal standing to file
the suits concerning the lack of Senate concurrence in EDCA.
Respondent emphasizes that the power to concur in treaties and
international agreements is an "institutional prerogative" granted by the
Constitution to the Senate. Accordingly, the OSG argues that in case of
an allegation of impairment of that power, the injured party would be the
Senate as an institution or any of its incumbent members, as it is the
Senate's constitutional function that is allegedly being violated.
The legal standing of an institution of the Legislature or of any of its
Members has already been recognized by this Court in a number of
cases.131 What is in question here is the alleged impairment of the
constitutional duties and powers granted to, or the impermissible intrusion
upon the domain of, the Legislature or an institution thereof.132 In the case
of suits initiated by the legislators themselves, this Court has recognized
their standing to question the validity of any official action that they claim
infringes the prerogatives, powers, and privileges vested by the
Constitution in their office.133 As aptly explained by Justice Perfecto in
Mabanag v. Lopez Vito:134
Being members of Congress, they are even duty bound to see that the
latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to
commit a flagrant betrayal of public trust. They are representatives of the
sovereign people and it is their sacred duty to see to it that the
fundamental law embodying the will of the sovereign people is not
trampled upon. (Emphases supplied)
We emphasize that in a legislators' suit, those Members of Congress who
are challenging the official act have standing only to the extent that the
alleged violation impinges on their right to participate in the exercise of
the powers of the institution of which they are members.135 Legislators
have the standing "to maintain inviolate the prerogatives, powers, and
privileges vested by the Constitution in their office and are allowed to sue
to question the validity of any official action, which they claim infringes
their prerogatives as legislators."136 As legislators, they must clearly show
that there was a direct injury to their persons or the institution to which
they belong.137
As correctly argued by respondent, the power to concur in a treaty or an
international agreement is an institutional prerogative granted by the
Constitution to the Senate, not to the entire Legislature. In Pimentel v.
Office of the Executive Secretary, this Court did not recognize the
standing of one of the petitioners therein who was a member of the
House of Representatives. The petition in that case sought to compel the
transmission to the Senate for concurrence of the signed text of the
Statute of the International Criminal Court. Since that petition invoked the
power of the Senate to grant or withhold its concurrence in a treaty
entered into by the Executive Department, only then incumbent Senator
Pimentel was allowed to assert that authority of the Senate of which he
was a member.
Therefore, none of the initial petitioners in the present controversy
has the standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of
the Executive for the following reasons.
In any case, petitioners raise issues involving matters of transcendental
importance.
Petitioners138 argue that the Court may set aside procedural technicalities,
as the present petition tackles issues that are of transcendental
importance. They point out that the matter before us is about the proper
exercise of the Executive Department's power to enter into international
agreements in relation to that of the Senate to concur in those
agreements. They also assert that EDCA would cause grave injustice, as
well as irreparable violation of the Constitution and of the Filipino people's
rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the
mere fact that the present petitions involve matters of transcendental
importance in order to cure their inability to comply with the constitutional
requirement of standing. Respondent bewails the overuse of
"transcendental importance" as an exception to the traditional
requirements of constitutional litigation. It stresses that one of the
purposes of these requirements is to protect the Supreme Court from
unnecessary litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal stance
towards the requirement of legal standing, especially when paramount
interest is involved. Indeed, when those who challenge the official act are
able to craft an issue of transcendental significance to the people, the
Court may exercise its sound discretion and take cognizance of the suit.
It may do so in spite of the inability of the petitioners to show that they
have been personally injured by the operation of a law or any other
government act.
While this Court has yet to thoroughly delineate the outer limits of this
doctrine, we emphasize that not every other case, however strong public
interest may be, can qualify as an issue of transcendental importance.
Before it can be impelled to brush aside the essential requisites for
exercising its power of judicial review, it must at the very least consider a
number of factors: (1) the character of the funds or other assets involved
in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party that
has a more direct and specific interest in raising the present questions.141
An exhaustive evaluation of the memoranda of the parties, together with
the oral arguments, shows that petitioners have presented serious
constitutional issues that provide ample justification for the Court to set
aside the rule on standing. The transcendental importance of the issues
presented here is rooted in the Constitution itself. Section 25, Article XVIII
thereof, cannot be any clearer: there is a much stricter mechanism
required before foreign military troops, facilities, or bases may be allowed
in the country. The DFA has already confirmed to the U.S. Embassy that
"all internal requirements of the Philippines x x x have already been
complied with."142 It behooves the Court in this instance to take a liberal
stance towards the rule on standing and to determine forthwith whether
there was grave abuse of discretion on the part of the Executive
Department.
We therefore rule that this case is a proper subject for
judicial review.
B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or
facilities
C. Whether the provisions under EDCA are consistent
with the Constitution, as well as with existing laws
and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law includes the
duty to defend the State, for which purpose he may use that power
in the conduct of foreign relations
Historically, the Philippines has mirrored the division of powers in the
U.S. government. When the Philippine government was still an agency of
the Congress of the U.S., it was as an agent entrusted with powers
categorized as executive, legislative, and judicial, and divided among
these three great branches.143 By this division, the law implied that the
divided powers cannot be exercised except by the department given the
power.144
This divide continued throughout the different versions of the Philippine
Constitution and specifically vested the supreme executive power in the
Governor-General of the Philippines,145 a position inherited by the
President of the Philippines when the country attained independence.
One of the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied by the
oath of office.146 The oath of the President prescribed by the 1987
Constitution reads thus:
I do solemnly swear (or affirm) that I will faithfully and conscientiously
fulfill my duties as President (or Vice-President or Acting President) of
the Philippines, preserve and defend its Constitution, execute its laws,
do justice to every man, and consecrate myself to the service of the
Nation. So help me God. (In case of affirmation, last sentence will be
omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation
imposed on the President, and not a separate grant of power.148 Section 1
7, Article VII of the Constitution, expresses this duty in no uncertain terms
and includes it in the provision regarding the President's power of control
over the executive department, viz:
The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not
explicitly require this oath from the President. In the 1973 Constitution, for
instance, the provision simply gives the President control over the
ministries.149 A similar language, not in the form of the President's oath,
was present in the 1935 Constitution, particularly in the enumeration of
executive functions.150 By 1987, executive power was codified not only in
the Constitution, but also in the Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all
the executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in
executive power and is intimately related to the other executive functions.
These functions include the faithful execution of the law in autonomous
regions;152 the right to prosecute crimes;153 the implementation of
transportation projects;154 the duty to ensure compliance with treaties,
executive agreements and executive orders;155 the authority to deport
undesirable aliens;156 the conferment of national awards under the
President's jurisdiction;157 and the overall administration and control of the
executive department.158
These obligations are as broad as they sound, for a President cannot
function with crippled hands, but must be capable of securing the rule of
law within all territories of the Philippine Islands and be empowered to do
so within constitutional limits. Congress cannot, for instance, limit or take
over the President's power to adopt implementing rules and regulations
for a law it has enacted.159
More important, this mandate is self-executory by virtue of its being
inherently executive in nature.160 As Justice Antonio T. Carpio previously
wrote,161
[i]f the rules are issued by the President in implementation or execution of
self-executory constitutional powers vested in the President, the rule-
making power of the President is not a delegated legislative power. The
most important self-executory constitutional power of the President is the
President's constitutional duty and mandate to "ensure that the laws be
faithfully executed." The rule is that the President can execute the law
without any delegation of power from the legislature.
The import of this characteristic is that the manner of the
President's execution of the law, even if not expressly granted by
the law, is justified by necessity and limited only by law, since the
President must "take necessary and proper steps to carry into
execution the law."162 Justice George Malcolm states this principle in a
grand manner:163
The executive should be clothed with sufficient power to administer
efficiently the affairs of state. He should have complete control of the
instrumentalities through whom his responsibility is discharged. It is still
true, as said by Hamilton, that "A feeble executive implies a feeble
execution of the government. A feeble execution is but another phrase for
a bad execution; and a government ill executed, whatever it may be in
theory, must be in practice a bad government." The mistakes of State
governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain - The
Congress of the United States clearly intended that the Governor-
General's power should be commensurate with his responsibility. The
Congress never intended that the Governor-General should be saddled
with the responsibility of administering the government and of executing
the laws but shorn of the power to do so. The interests of the Philippines
will be best served by strict adherence to the basic principles of
constitutional government.
In light of this constitutional duty, it is the President's prerogative to do
whatever is legal and necessary for Philippine defense interests. It is no
coincidence that the constitutional provision on the faithful execution
clause was followed by that on the President's commander-in-chief
powers,164 which are specifically granted during extraordinary events of
lawless violence, invasion, or rebellion. And this duty of defending the
country is unceasing, even in times when there is no state of lawlesss
violence, invasion, or rebellion. At such times, the President has full
powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the
faithful-execution clause of the Constitution to do nothing when the call of
the moment requires increasing the military's defensive capabilities,
which could include forging alliances with states that hold a common
interest with the Philippines or bringing an international suit against an
offending state.
The context drawn in the analysis above has been termed by Justice
Arturo D. Brion's Dissenting Opinion as the beginning of a "patent
misconception."165 His dissent argues that this approach taken in
analyzing the President's role as executor of the laws is preceded by the
duty to preserve and defend the Constitution, which was allegedly
overlooked.166
In arguing against the approach, however, the dissent grossly failed to
appreciate the nuances of the analysis, if read holistically and in context.
The concept that the President cannot function with crippled hands and
therefore can disregard the need for Senate concurrence in treaties167 was
never expressed or implied. Rather, the appropriate reading of the
preceding analysis shows that the point being elucidated is the reality that
the President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must
resolve issues imbued with both concerns to the full extent of his powers,
subject only to the limits supplied by law. In other words, apart from an
expressly mandated limit, or an implied limit by virtue of incompatibility,
the manner of execution by the President must be given utmost
deference. This approach is not different from that taken by the Court in
situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President
authority to bypass constitutional safeguards and limits. In fact, it
specifies what these limitations are, how these limitations are triggered,
how these limitations function, and what can be done within the sphere of
constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when
it claims that the foreign relations power of the President should not be
interpreted in isolation.168 The analysis itself demonstrates how the foreign
affairs function, while mostly the President's, is shared in several
instances, namely in Section 2 of Article II on the conduct of war;
Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article XVIII on
treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or
facilities.
In fact, the analysis devotes a whole subheading to the relationship
between the two major presidential functions and the role of the Senate in
it.
This approach of giving utmost deference to presidential initiatives in
respect of foreign affairs is not novel to the Court. The President's act of
treating EDCA as an executive agreement is not the principal power
being analyzed as the Dissenting Opinion seems to suggest. Rather, the
preliminary analysis is in reference to the expansive power of foreign
affairs. We have long treated this power as something the Courts must
not unduly restrict. As we stated recently in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements. However, the question
whether the Philippine government should espouse claims of its nationals
against a foreign government is a foreign relations matter, the authority
for which is demonstrably committed by our Constitution not to the courts
but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the Treaty of
Peace of 1951. The wisdom of such decision is not for the courts to
question. Neither could petitioners herein assail the said determination by
the Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US
Supreme Court held that "[t]he President is the sole organ of the nation in
its external relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of
our international relations, embarrassment -
 perhaps serious embarrassment - is to be avoided
and success for our aims achieved, congressional
legislation which is to be made effective through
negotiation and inquiry within the international
field must often accord to the President a
degree of discretion and freedom from
statutory restriction which would not be
admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this
true in time of war. He has his confidential
sources of information. He has his agents in the
form of diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence through
Bavan v. Executive Secretary and Pimentel v. Executive Secretary;
its overreaching principle was, perhaps, best articulated in (now Chief)
Justice Puno's dissent in Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of
complexities and consequences, sometimes with
life and death significance to the nation especially
in times of war. It can only be entrusted to that
department of government which can act on the
basis of the best available information and can
decide with decisiveness .... It is also the
President who possesses the most
comprehensive and the most confidential
information about foreign countries for our
diplomatic and consular officials regularly brief
him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential
role in foreign affairs is dominant and the
President is traditionally accorded a wider
degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his
actions are adjudged under less stringent
standards, lest their judicial repudiation lead
to breach of an international obligation,
rupture of state relations, forfeiture of
confidence, national embarrassment and a
plethora of other problems with equally
undesirable consequences.169 (Emphases
supplied)
Understandably, this Court must view the instant case with the same
perspective and understanding, knowing full well the constitutional and
legal repercussions of any judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of
foreign military bases, troops or facilities, except by way of a treaty
concurred in by the Senate - a clear limitation on the President's
dual role as defender of the State and as sole authority in foreign
relations.
Despite the President's roles as defender of the State and sole authority
in foreign relations, the 1987 Constitution expressly limits his ability in
instances when it involves the entry of foreign military bases, troops or
facilities. The initial limitation is found in Section 21 of the provisions on
the Executive Department: "No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate." The specific limitation is given by Section 25 of
the Transitory Provisions, the full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution
intended to add to the basic requirements of a treaty under Section 21 of
Article VII. This means that both provisions must be read as additional
limitations to the President's overarching executive function in matters of
defense and foreign relations.
3. The President, however, may enter into an executive agreement
on foreign military bases, troops, or facilities, if (a) it is not the
instrument that allows the presence of foreign military bases,
troops, or facilities; or (b) it merely aims to implement an existing
law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.
(Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the
form of a "treaty" duly concurred in by the Senate. They stress that the
Constitution is unambigous in mandating the transmission to the Senate
of all international agreements concluded after the expiration of the MBA
in 1991 - agreements that concern the presence of foreign military bases,
troops, or facilities in the country. Accordingly, petitioners maintain that
the Executive Department is not given the choice to conclude
agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15
of its members - with 1 against and 2 abstaining - says in SR 105171 that
EDCA must be submitted to the Senate in the form of a treaty for
concurrence by at least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and
Article XVIII, Section 25) to support its position. Compared with the lone
constitutional provision that the Office of the Solicitor General (OSG)
cites, which is Article XVIII, Section 4(2), which includes the
constitutionality of "executive agreement(s)" among the cases subject to
the Supreme Court's power of judicial review, the Constitution clearly
requires submission of EDCA to the Senate. Two specific provisions
versus one general provision means that the specific provisions prevail.
The term "executive agreement" is "a term wandering alone in the
Constitution, bereft of provenance and an unidentified constitutional
mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon
interpellation even added that the MDT, which the Executive claims to be
partly implemented through EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with
SR 105, as well as with the comment on interpellation made by Senator
Santiago.
First, the concept of "executive agreement" is so well-entrenched in this
Court's pronouncements on the powers of the President. When the Court
validated the concept of "executive agreement," it did so with full
knowledge of the Senate's role in concurring in treaties. It was aware of
the problematique of distinguishing when an international agreement
needed Senate concurrence for validity, and when it did not; and the
Court continued to validate the existence of "executive agreements" even
after the 1987 Constitution.172 This follows a long line of similar decisions
upholding the power of the President to enter into an executive
agreement.173
Second, the MDT has not been rendered obsolescent, considering that
as late as 2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25,
inevitably leads to the conclusion that it applies only to a proposed
agreement between our government and a foreign government, whereby
military bases, troops, or facilities of such foreign government would be
"allowed" or would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction.
This wording signifies that the President is not authorized by law to allow
foreign military bases, troops, or facilities to enter the Philippines, except
under a treaty concurred in by the Senate. Hence, the constitutionally
restricted authority pertains to the entry of the bases, troops, or facilities,
and not to the activities to be done after entry.
Under the principles of constitutional construction, of paramount
consideration is the plain meaning of the language expressed in the
Constitution, or the verba legis rule.175 It is presumed that the provisions
have been carefully crafted in order to express the objective it seeks to
attain.176 It is incumbent upon the Court to refrain from going beyond the
plain meaning of the words used in the Constitution. It is presumed that
the framers and the people meant what they said when they said it, and
that this understanding was reflected in the Constitution and understood
by the people in the way it was meant to be understood when the
fundamental law was ordained and promulgated.177 As this Court has
often said:
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It is
to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Thus,
these are the cases where the need for construction is reduced to a
minimum.178 (Emphases supplied)
It is only in those instances in which the constitutional provision is
unclear, ambiguous, or silent that further construction must be done to
elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission on
Elections,180 we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon its
face. The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers'
understanding thereof. (Emphases supplied)
The effect of this statement is surprisingly profound, for, if taken literally,
the phrase "shall not be allowed in the Philippines" plainly refers to the
entry of bases, troops, or facilities in the country. The Oxford English
Dictionary defines the word "allow" as a transitive verb that means "to
permit, enable"; "to give consent to the occurrence of or relax restraint on
(an action, event, or activity)"; "to consent to the presence or attendance
of (a person)"; and, when with an adverbial of place, "to permit (a person
or animal) to go, come, or be in, out, near, etc."181 Black's Law Dictionary
defines the term as one that means "[t]o grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a preposition used
to indicate "place or position in space or anything having material
extension: Within the limits or bounds of, within (any place or thing)."183
That something is the Philippines, which is the noun that follows.
It is evident that the constitutional restriction refers solely to the initial
entry of the foreign military bases, troops, or facilities. Once entry is
authorized, the subsequent acts are thereafter subject only to the
limitations provided by the rest of the Constitution and Philippine law, and
not to the Section 25 requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This
Court stated in Lim v. Executive Secretary:
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word "activities" arose from accident. In
our view, it was deliberately made that way to give both parties a certain
leeway in negotiation. In this manner, visiting US forces may sojourn
in Philippine territory for purposes other than military. As conceived,
the joint exercises may include training on new techniques of patrol and
surveillance to protect the nation's marine resources, sea search-and-
rescue operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and
humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that "Balikatan 02-1," a "mutual
anti- terrorism advising, assisting and training exercise," falls under the
umbrella of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities -as
opposed to combat itself-such as the one subject of the instant petition,
are indeed authorized.184 (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues to govern
the conduct of foreign military troops in the Philippines,185 readily implying
the legality of their initial entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive
agreement, since it merely involves "adjustments in detail" in the
implementation of the MDT and the VFA.186 It points out that there are
existing treaties between the Philippines and the U.S. that have already
been concurred in by the Philippine Senate and have thereby met the
requirements of the Constitution under Section 25. Because of the status
of these prior agreements, respondent emphasizes that EDCA need not
be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with the
ponencia's application of verba legis construction to the words of Article
XVIII, Section 25.187 It claims that the provision is "neither plain, nor that
simple."188 To buttress its disagreement, the dissent states that the
provision refers to a historical incident, which is the expiration of the 1947
MBA.189 Accordingly, this position requires questioning the circumstances
that led to the historical event, and the meaning of the terms under Article
XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis
is not inapplicable just because a provision has a specific historical
context. In fact, every provision of the Constitution has a specific
historical context. The purpose of constitutional and statutory construction
is to set tiers of interpretation to guide the Court as to how a particular
provision functions. Verba legis is of paramount consideration, but it is
not the only consideration. As this Court has often said:
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin.
It is to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being essential
for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Thus,
these are the cases where the need for construction is reduced to a
minimum.190 (Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning of terms.
In this case, the phrase being construed is "shall not be allowed in the
Philippines" and not the preceding one referring to "the expiration in 1991
of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases,
troops, or facilities." It is explicit in the wording of the provision itself that
any interpretation goes beyond the text itself and into the discussion of
the framers, the context of the Constitutional Commission's time of
drafting, and the history of the 1947 MBA. Without reference to these
factors, a reader would not understand those terms. However, for the
phrase "shall not be allowed in the Philippines," there is no need for such
reference. The law is clear. No less than the Senate understood this
when it ratified the VFA.
4. The President may generally enter into executive agreements
subject to limitations defined by the Constitution and may be in
furtherance of a treaty already concurred in by the Senate.
We discuss in this section why the President can enter into executive
agreements.
It would be helpful to put into context the contested language found in
Article XVIII, Section 25. Its more exacting requirement was introduced
because of the previous experience of the country when its
representatives felt compelled to consent to the old MBA.191 They felt
constrained to agree to the MBA in fulfilment of one of the major
conditions for the country to gain independence from the U.S.192 As a
result of that experience, a second layer of consent for agreements that
allow military bases, troops and facilities in the country is now articulated
in Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a
way that we completely ignore the intent of our constitutional framers
when they provided for that additional layer, nor the vigorous statements
of this Court that affirm the continued existence of that class of
international agreements called "executive agreements."
The power of the President to enter into binding executive agreements
without Senate concurrence is already well-established in this
jurisdiction.193 That power has been alluded to in our present and past
Constitutions,194 in various statutes,195 in Supreme Court decisions,196 and
during the deliberations of the Constitutional Commission.197 They cover a
wide array of subjects with varying scopes and purposes,198 including
those that involve the presence of foreign military forces in the country.199
As the sole organ of our foreign relations200 and the constitutionally
assigned chief architect of our foreign policy,201 the President is vested
with the exclusive power to conduct and manage the country's interface
with other states and governments. Being the principal representative of
the Philippines, the Chief Executive speaks and listens for the nation;
initiates, maintains, and develops diplomatic relations with other states
and governments; negotiates and enters into international agreements;
promotes trade, investments, tourism and other economic relations; and
settles international disputes with other states.202
As previously discussed, this constitutional mandate emanates from the
inherent power of the President to enter into agreements with other
states, including the prerogative to conclude binding executive
agreements that do not require further Senate concurrence. The
existence of this presidential power203 is so well-entrenched that Section
5(2)(a), Article VIII of the Constitution, even provides for a check on its
exercise. As expressed below, executive agreements are among those
official governmental acts that can be the subject of this Court's power of
judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question. (Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive
agreements are defined as "international agreements embodying
adjustments of detail carrying out well-established national policies and
traditions and those involving arrangements of a more or less temporary
nature."204 In Bayan Muna v. Romulo, this Court further clarified that
executive agreements can cover a wide array of subjects that have
various scopes and purposes.205 They are no longer limited to the
traditional subjects that are usually covered by executive agreements as
identified in Eastern Sea Trading. The Court thoroughly discussed this
matter in the following manner:
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not
cast in stone. x x x.
As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct
of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights,
the environment, and the sea. In fact, in the US alone, the executive
agreements executed by its President from 1980 to 2000 covered
subjects such as defense, trade, scientific cooperation, aviation,
atomic energy, environmental cooperation, peace corps, arms
limitation, and nuclear safety, among others. Surely, the enumeration
in Eastern Sea Trading cannot circumscribe the option of each state
on the matter of which the international agreement format would be
convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
. . . It would be useless to undertake to discuss here the large variety
of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into under
the trade-agreement act, have been negotiated with foreign governments.
. . . They cover such subjects as the inspection of vessels, navigation
dues, income tax on shipping profits, the admission of civil air craft,
custom matters and commercial relations generally, international claims,
postal matters, the registration of trademarks and copyrights, etc ....
(Emphases Supplied)
One of the distinguishing features of executive agreements is that their
validity and effectivity are not affected by a lack of Senate concurrence.206
This distinctive feature was recognized as early as in Eastern Sea
Trading (1961), viz:
Treaties are formal documents which require ratification with the
approval of two-thirds of the Senate. Executive agreements become
binding through executive action without the need of a vote by the
Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding agreements without
the necessity of subsequent Congressional approval has been
confirmed by long usage. From the earliest days of our history we have
entered into executive agreements covering such subjects as commercial
and consular relations, most-favored-nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements
and the settlement of claims. The validity of these has never been
seriously questioned by our courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In fact, the
framers specifically deliberated on whether the general term "international
agreement" included executive agreements, and whether it was
necessary to include an express proviso that would exclude executive
agreements from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern
Sea Trading, the Constitutional Commission members ultimately decided
that the term "international agreements" as contemplated in Section 21,
Article VII, does not include executive agreements, and that a proviso is
no longer needed. Their discussion is reproduced below:207
MS. AQUINO: Madam President, first I would like a clarification from the
Committee. We have retained the words "international agreement" which
I think is the correct judgment on the matter because an international
agreement is different from a treaty. A treaty is a contract between parties
which is in the nature of international agreement and also a municipal law
in the sense that the people are bound. So there is a conceptual
difference. However, I would like to be clarified if the international
agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these
international negotiations stipulate the conditions which are necessary for
the agreement or whatever it may be to become valid or effective as
regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend on
the nature of the executive agreement? According to common usage,
there are two types of executive agreement: one is purely
proceeding from an executive act which affects external relations
independent of the legislative and the other is an executive act in
pursuance of legislative authorization. The first kind might take the
form of just conventions or exchanges of notes or protocol while the
other, which would be pursuant to the legislative authorization, may
be in the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally made to
implement a treaty already enforced or to determine the details for
the implementation of the treaty. We are speaking of executive
agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not
cover the first kind of executive agreement which is just protocol or an
exchange of notes and this would be in the nature of reinforcement of
claims of a citizen against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification for
validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide,
unless the Committee explains to us otherwise, an explicit proviso
which would except executive agreements from the requirement of
concurrence of two-thirds of the Members of the Senate. Unless I am
enlightened by the Committee I propose that tentatively, the sentence
should read. "No treaty or international agreement EXCEPT EXECUTIVE
AGREEMENTS shall be valid and effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court
decision [in Eastern Sea Trading] might help clarify this:
The right of the executive to enter into binding agreements without
the necessity of subsequent Congressional approval has been
confirmed by long usage. From the earliest days of our history, we
have entered into executive agreements covering such subjects as
commercial and consular relations, most favored nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of this has never
been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been
concluded by the executive of various countries under the Act of
Congress of March 3, 1881 (21 Stat. 502) . . . International agreements
involving political issues or changes of national policy and those
involving international agreements of a permanent character usually
take the form of treaties. But international agreements embodying
adjustments of detail, carrying out well established national policies
and traditions and those involving arrangements of a more or less
temporary nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the executive
agreements?
FR. BERNAS: What we are referring to, therefore, when we say
international agreements which need concurrence by at least two-
thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are
executive agreements essentially but which are proceeding from the
authorization of Congress. If that is our understanding, then I am willing
to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it
does not need subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the
definition of "executive agreements" and that would make
unnecessary any explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive
agreements" because I heard that these executive agreements must rely
on treaties. In other words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as
executive agreements being the implementation of treaties, details of
which do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam
President? Would 99 years be considered permanent? What would be
the measure of permanency? I do not conceive of a treaty that is going to
be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether
this type of agreement should be included in a provision of the
Constitution requiring the concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement
of which I am not clear. If the executive agreement partakes of the
nature of a treaty, then it should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty,
it is within the power of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the
words "international agreements" would include executive
agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do
we take it, therefore, that as far as the Committee is concerned, the
term "international agreements" does not include the term
"executive agreements" as read by the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under
Section 21 was again recognized in Bayan v. Zamora and in Bayan Muna
v. Romulo. These cases, both decided under the aegis of the present
Constitution, quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the concurrence of the
Senate.
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are
concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of
noted scholars,208 executive agreements merely involve arrangements on
the implementation of existing policies, rules, laws, or agreements. They
are concluded (1) to adjust the details of a treaty;209 (2) pursuant to or
upon confirmation by an act of the Legislature;210 or (3) in the exercise of
the President's independent powers under the Constitution.211 The raison
d'etre of executive agreements hinges on prior constitutional or legislative
authorizations.
The special nature of an executive agreement is not just a domestic
variation in international agreements. International practice has accepted
the use of various forms and designations of international agreements,
ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified
forms that no longer necessitate ratification.212 An international agreement
may take different forms: treaty, act, protocol, agreement, concordat,
compromis d'arbitrage, convention, covenant, declaration, exchange of
notes, statute, pact, charter, agreed minute, memorandum of agreement,
modus vivendi, or some other form.213 Consequently, under international
law, the distinction between a treaty and an international agreement or
even an executive agreement is irrelevant for purposes of determining
international rights and obligations.
However, this principle does not mean that the domestic law
distinguishing treaties, international agreements, and executive
agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two very important features
that distinguish treaties from executive agreements and translate them
into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or
implied authorization under the Constitution, statutes, or treaties. The
absence of these precedents puts the validity and effectivity of executive
agreements under serious question for the main function of the Executive
is to enforce the Constitution and the laws enacted by the Legislature, not
to defeat or interfere in the performance of these rules.214 In turn,
executive agreements cannot create new international obligations that
are not expressly allowed or reasonably implied in the law they purport to
implement.
Second, treaties are, by their very nature, considered superior to
executive agreements. Treaties are products of the acts of the Executive
and the Senate215 unlike executive agreements, which are solely
executive actions.216 Because of legislative participation through the
Senate, a treaty is regarded as being on the same level as a statute.217 If
there is an irreconcilable conflict, a later law or treaty takes precedence
over one that is prior.218 An executive agreement is treated differently.
Executive agreements that are inconsistent with either a law or a treaty
are considered ineffective.219 Both types of international agreement are
nevertheless subject to the supremacy of the Constitution.220
This rule does not imply, though, that the President is given carte blanche
to exercise this discretion. Although the Chief Executive wields the
exclusive authority to conduct our foreign relations, this power must still
be exercised within the context and the parameters set by the
Constitution, as well as by existing domestic and international laws.
There are constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as those that
involve the following:
a. The policy of freedom from nuclear weapons within
Philippine territory221
b. The fixing of tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts,
which must be pursuant to the authority granted by
Congress222
c. The grant of any tax exemption, which must be
pursuant to a law concurred in by a majority of all the
Members of Congress223
d. The contracting or guaranteeing, on behalf of the
Philippines, of foreign loans that must be previously
concurred in by the Monetary Board224
e. The authorization of the presence of foreign military
bases, troops, or facilities in the country must be in the
form of a treaty duly concurred in by the Senate.225
f. For agreements that do not fall under paragraph 5, the
concurrence of the Senate is required, should the form of
the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an
executive agreement or a treaty.
No court can tell the President to desist from choosing an executive
agreement over a treaty to embody an international agreement, unless
the case falls squarely within Article VIII, Section 25.
As can be gleaned from the debates among the members of the
Constitutional Commission, they were aware that legally binding
international agreements were being entered into by countries in forms
other than a treaty. At the same time, it is clear that they were also keen
to preserve the concept of "executive agreements" and the right of the
President to enter into such agreements.
What we can glean from the discussions of the Constitutional
Commissioners is that they understood the following realities:
1. Treaties, international agreements, and executive
agreements are all constitutional manifestations of the
conduct of foreign affairs with their distinct legal
characteristics.
a. Treaties are formal contracts between the
Philippines and other States-parties, which are in
the nature of international agreements, and also
of municipal laws in the sense of their binding
nature.226
 b. International agreements are similar
instruments, the provisions of which may require
the ratification of a designated number of parties
thereto. These agreements involving political
issues or changes in national policy, as well as
those involving international agreements of a
permanent character, usually take the form of
treaties. They may also include commercial
agreements, which are executive agreements
essentially, but which proceed from previous
authorization by Congress, thus dispensing with
the requirement of concurrence by the Senate.227
c. Executive agreements are generally intended to
implement a treaty already enforced or to
determine the details of the implementation
thereof that do not affect the sovereignty of the
State.228
2. Treaties and international agreements that cannot be
mere executive agreements must, by constitutional
decree, be concurred in by at least two-thirds of the
Senate.
3. However, an agreement - the subject of which is the
entry of foreign military troops, bases, or facilities - is
particularly restricted. The requirements are that it be in
the form of a treaty concurred in by the Senate; that when
Congress so requires, it be ratified by a majority of the
votes cast by the people in a national referendum held for
that purpose; and that it be recognized as a treaty by the
other contracting State.
4. Thus, executive agreements can continue to exist as a
species of international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the
scope of her constitutional authority and discretion when she chose to
enter into the RP-U.S. Non-Surrender Agreement in the form of an
executive agreement, instead of a treaty, and in ratifying the agreement
without Senate concurrence. The Court en banc discussed this intrinsic
presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. x x x x. Pressing its point, petitioner submits
that the subject of the Agreement does not fall under any of the subject-
categories that xx x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements
and settlement of claims.
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast in
stone. There are no hard and fast rules on the propriety of entering,
on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the
choice of the form of agreement is the parties' intent and desire to
craft an international agreement in the form they so wish to further
their respective interests. Verily, the matter of form takes a back seat
when it comes to effectiveness and binding effect of the enforcement of a
treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save
for the situation and matters contemplated in Sec. 25, Art. XVIII of the
Constitution - when a treaty is required, the Constitution does not
classify any subject, like that involving political issues, to be in the
form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in
the external affairs of the nation is, as Bayan would put it, "executive
altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03,
then President Gloria Macapagal-Arroyo, represented by the Secretary of
Foreign Affairs, acted within the scope of the authority and discretion
vested in her by the Constitution. At the end of the day, the President
- by ratifying, thru her deputies, the non-surrender agreement - did
nothing more than discharge a constitutional duty and exercise a
prerogative that pertains to her office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be given a
larger measure of authority and wider discretion, subject only to the least
amount of checks and restrictions under the Constitution.229 The rationale
behind this power and discretion was recognized by the Court in Vinuya
v. Executive Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the
Negotiation of International Agreements and its Ratification, thus,
correctly reflected the inherent powers of the President when it stated
that the DFA "shall determine whether an agreement is an executive
agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does
not look into whether an international agreement should be in the form of
a treaty or an executive agreement, save in cases in which the
Constitution or a statute requires otherwise. Rather, in view of the vast
constitutional powers and prerogatives granted to the President in the
field of foreign affairs, the task of the Court is to determine whether the
international agreement is consistent with the applicable limitations.
6. Executive agreements may cover the matter of foreign military
forces if it merely involves detail adjustments.
The practice of resorting to executive agreements in adjusting the details
of a law or a treaty that already deals with the presence of foreign military
forces is not at all unusual in this jurisdiction. In fact, the Court has
already implicitly acknowledged this practice in Lim v. Executive
Secretary.231 In that case, the Court was asked to scrutinize the
constitutionality of the Terms of Reference of the Balikatan 02-1 joint
military exercises, which sought to implement the VFA. Concluded in the
form of an executive agreement, the Terms of Reference detailed the
coverage of the term "activities" mentioned in the treaty and settled the
matters pertaining to the construction of temporary structures for the U.S.
troops during the activities; the duration and location of the exercises; the
number of participants; and the extent of and limitations on the activities
of the U.S. forces. The Court upheld the Terms of Reference as being
consistent with the VFA. It no longer took issue with the fact that the
Balikatan Terms of Reference was not in the form of a treaty concurred in
by the Senate, even if it dealt with the regulation of the activities of
foreign military forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an
executive agreement in an attempt to adjust the details of a provision of
the VFA. The Philippines and the U.S. entered into the Romulo-Kenney
Agreement, which undertook to clarify the detention of a U.S. Armed
Forces member, whose case was pending appeal after his conviction by
a trial court for the crime of rape. In testing the validity of the latter
agreement, the Court precisely alluded to one of the inherent limitations
of an executive agreement: it cannot go beyond the terms of the treaty it
purports to implement. It was eventually ruled that the Romulo-Kenney
Agreement was "not in accord" with the VFA, since the former was
squarely inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the Court ordered
the Secretary of Foreign Affairs to comply with the VFA and "forthwith
negotiate with the United States representatives for the appropriate
agreement on detention facilities under Philippine authorities as provided
in Art. V, Sec. 10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the following
pronouncements to guide us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains
stringent requirements that must be fulfilled by the
international agreement allowing the presence of foreign
military bases, troops, or facilities in the Philippines: (a)
the agreement must be in the form of a treaty, and (b) it
must be duly concurred in by the Senate.
2. If the agreement is not covered by the above situation,
then the President may choose the form of the agreement
(i.e., either an executive agreement or a treaty), provided
that the agreement dealing with foreign military bases,
troops, or facilities is not the principal agreement that first
allows their entry or presence in the Philippines.
3. The executive agreement must not go beyond the
parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement; and
must not unduly expand the international obligation
 expressly mentioned or necessarily implied in the law or
treaty.
4. The executive agreement must be consistent with the
Constitution, as well as with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an
executive agreement, respondents carry the burden of proving that it is a
mere implementation of existing laws and treaties concurred in by the
Senate. EDCA must thus be carefully dissected to ascertain if it remains
within the legal parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and framework of
the MDT and the VFA
The starting point of our analysis is the rule that "an executive agreement
xx x may not be used to amend a treaty."234 In Lim v. Executive Secretary
and in Nicolas v. Romulo, the Court approached the question of the
validity of executive agreements by comparing them with the general
framework and the specific provisions of the treaties they seek to
implement.
In Lim, the Terms of Reference of the joint military exercises was
scrutinized by studying "the framework of the treaty antecedents to which
the Philippines bound itself,"235 i.e., the MDT and the VFA. The Court
proceeded to examine the extent of the term "activities" as contemplated
in Articles 1236 and II237 of the VFA. It later on found that the term "activities"
was deliberately left undefined and ambiguous in order to permit "a wide
scope of undertakings subject only to the approval of the Philippine
government"238 and thereby allow the parties "a certain leeway in
negotiation."239 The Court eventually ruled that the Terms of Reference fell
within the sanctioned or allowable activities, especially in the context of
the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the
provisions of the VFA on custody and detention to ascertain the validity of
the Romulo-Kenney Agreement.240 It eventually found that the two
international agreements were not in accord, since the Romulo-Kenney
Agreement had stipulated that U.S. military personnel shall be detained
at the U.S. Embassy Compound and guarded by U.S. military personnel,
instead of by Philippine authorities. According to the Court, the parties
"recognized the difference between custody during the trial and detention
after conviction."241 Pursuant to Article V(6) of the VFA, the custody of a
U.S. military personnel resides with U.S. military authorities during trial.
Once there is a finding of guilt, Article V(l0) requires that the confinement
or detention be "by Philippine authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA
"substantially modifies or amends the VFA"242 and follows with an
enumeration of the differences between EDCA and the VFA. While these
arguments will be rebutted more fully further on, an initial answer can
already be given to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits
as the VFA does, but allows temporary stationing on a rotational basis of
U.S. military personnel and their contractors in physical locations with
permanent facilities and pre-positioned military materiel.
This argument does not take into account that these permanent facilities,
while built by U.S. forces, are to be owned by the Philippines once
constructed.243 Even the VFA allowed construction for the benefit of U.S.
forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the
prepositioning of military materiel, which can include various types of
warships, fighter planes, bombers, and vessels, as well as land and
amphibious vehicles and their corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment, vehicles,
vessels, and aircraft to be brought into the country. Articles VII and VIII of
the VFA contemplates that U.S. equipment, materials, supplies, and other
property are imported into or acquired in the Philippines by or on behalf of
the U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by
or for U.S. forces in connection with activities under the VFA. These
provisions likewise provide for the waiver of the specific duties, taxes,
charges, and fees that correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that
the VFA contemplates the entry of troops for training exercises, whereas
EDCA allows the use of territory for launching military and paramilitary
operations conducted in other states.245 The dissent of Justice Teresita J.
Leonardo-De Castro also notes that VFA was intended for non-combat
activides only, whereas the entry and activities of U.S. forces into Agreed
Locations were borne of military necessity or had a martial character, and
were therefore not contemplated by the VFA.246
This Court's jurisprudence however established in no uncertain terms that
combat-related activities, as opposed to actual combat, were allowed
under the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA
support the conclusion that combat-related activities as opposed to
combat itself such as the one subject of the instant petition, are indeed
authorized.247
Hence, even if EDCA was borne of military necessity, it cannot be said to
have strayed from the intent of the VFA since EDCA's combat-related
components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities
actually are. Both the VFA and EDCA deal with the presence of U.S.
forces within the Philippines, but make no mention of being platforms for
activity beyond Philippine territory. While it may be that, as applied,
military operations under either the VFA or EDCA would be carried out in
the future the scope of judicial review does not cover potential breaches
of discretion but only actual occurrences or blatantly illegal provisions.
Hence, we cannot invalidate EDCA on the basis of the potentially abusive
use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept
not contemplated in the VFA or the MDT: Agreed Locations, Contractors,
Pre-positioning, and Operational Control.248
As previously mentioned, these points shall be addressed fully and
individually in the latter analysis of EDCA's provisions. However, it must
already be clarified that the terms and details used by an implementing
agreement need not be found in the mother treaty. They must be sourced
from the authority derived from the treaty, but are not necessarily
expressed word-for-word in the mother treaty. This concern shall be
further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA
does not have provisions that may be construed as a restriction on or
modification of obligations found in existing statues, including the
jurisdiction of courts, local autonomy, and taxation. Implied in this
argument is that EDCA contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of
EDCA. Both the VFA and EDCA ensure Philippine jurisdiction in all
instances contemplated by both agreements, with the exception of those
outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly waived
whereas in EDCA, taxes are assumed by the government as will be
discussed later on. This fact does not, therefore, produce a diminution of
jurisdiction on the part of the Philippines, but rather a recognition of
sovereignty and the rights that attend it, some of which may be waived as
in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be
compared with those of the MDT and the VFA, which are the two treaties
from which EDCA allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized activities"
under EDCA: (1) U.S. personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the
MDT and the VFA. It explains that EDCA articulates the principle of
defensive preparation embodied in Article II of the MDT; and seeks to
enhance the defensive, strategic, and technological capabilities of both
parties pursuant to the objective of the treaty to strengthen those
capabilities to prevent or resist a possible armed attack. Respondent also
points out that EDCA simply implements Article I of the VFA, which
already allows the entry of U.S. troops and personnel into the country.
Respondent stresses this Court's recognition in Lim v. Executive
Secretary that U.S. troops and personnel are authorized to conduct
activities that promote the goal of maintaining and developing their
defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely
implement the MDT. According to them, the treaty does not specifically
authorize the entry of U.S. troops in the country in order to maintain and
develop the individual and collective capacities of both the Philippines
and the U.S. to resist an armed attack. They emphasize that the treaty
was concluded at a time when there was as yet no specific constitutional
prohibition on the presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements
the VFA. They assert that the agreement covers only short-term or
temporary visits of U.S. troops "from time to time" for the specific purpose
of combined military exercises with their Filipino counterparts. They
stress that, in contrast, U.S. troops are allowed under EDCA to perform
activities beyond combined military exercises, such as those enumerated
in Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of
permanence in the presence of U.S. troops in the country, since the
effectivity of EDCA is continuous until terminated. They proceed to argue
that while troops have a "rotational" presence, this scheme in fact fosters
their permanent presence.
a. Admission of U.S. military and civilian personnel into Philippine territory
is already allowed under the VFA
We shall first deal with the recognition under EDCA of the presence in the
country of three distinct classes of individuals who will be conducting
different types of activities within the Agreed Locations: (1) U.S. military
personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The
agreement refers to them as follows:
"United States personnel" means United States military and civilian
personnel temporarily in the territory of the Philippines in connection
with activities approved by the Philippines, as those terms are defined
in the VFA.252
"United States forces" means the entity comprising United States
personnel and all property, equipment, and materiel of the United
States Armed Forces present in the territory of the Philippines.253
"United States contractors" means companies and firms, and their
employees, under contract or subcontract to or on behalf of the
United States Department of Defense. United States contractors are not
included as part of the definition of United States personnel in this
Agreement, including within the context of the VFA.254
United States forces may contract for any materiel, supplies,
equipment, and services (including construction) to be furnished or
undertaken in the territory of the Philippines without restriction as to
choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services. Such contracts shall be solicited,
awarded, and administered in accordance with the laws and regulations
of the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the
agreement does not deal with the entry into the country of U.S.
personnel and contractors per se. While Articles I(l)(b)256 and II(4)257
speak of "the right to access and use" the Agreed Locations, their
wordings indicate the presumption that these groups have already been
allowed entry into Philippine territory, for which, unlike the VFA, EDCA
has no specific provision. Instead, Article II of the latter simply alludes to
the VFA in describing U.S. personnel, a term defined under Article I of the
treaty as follows:
As used in this Agreement, "United States personnel" means United
States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.
Within this definition:
1. The term "military personnel" refers to
military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast
Guard.
2. The term "civilian personnel" refers to
individuals who are neither nationals of nor
ordinarily resident in the Philippines and who
are employed by the United States armed
forces or who are accompanying the United
States armed forces, such as employees of the
American Red Cross and the United Services
Organization.258
Article II of EDCA must then be read with Article III of the VFA, which
provides for the entry accommodations to be accorded to U.S. military
and civilian personnel:
1. The Government of the Philippines shall facilitate the
admission of United States personnel and their
departure from the Philippines in connection with activities
covered by this agreement.
2. United States military personnel shall be exempt
from passport and visa regulations upon entering and
departing the Philippines.
3. The following documents only, which shall be required
in respect of United States military personnel who enter
the Philippines; xx xx.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
 demand, valid passports upon entry and departure of
the Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows
U.S. military and civilian personnel to be "temporarily in the Philippines,"
so long as their presence is "in connection with activities approved by the
Philippine Government." The Philippines, through Article III, even
guarantees that it shall facilitate the admission of U.S. personnel into the
country and grant exemptions from passport and visa regulations. The
VFA does not even limit their temporary presence to specific locations.
Based on the above provisions, the admission and presence of U.S.
military and civilian personnel in Philippine territory are already
allowed under the VFA, the treaty supposedly being implemented by
EDCA. What EDCA has effectively done, in fact, is merely provide the
mechanism to identify the locations in which U.S. personnel may perform
allowed activities pursuant to the VFA. As the implementing agreement, it
regulates and limits the presence of U.S. personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S.
contractors into Philippine territory; their entry must be sourced from
extraneous Philippine statutes and regulations for the admission of alien
employees or business persons.
Of the three aforementioned classes of individuals who will be conducting
certain activities within the Agreed Locations, we note that only U.S.
contractors are not explicitly mentioned in the VFA. This does not mean,
though, that the recognition of their presence under EDCA is ipso facto
an amendment of the treaty, and that there must be Senate concurrence
before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission
into the Philippines. Articles III and IV, in fact, merely grant them the right
of access to, and the authority to conduct certain activities within the
Agreed Locations. Since Article II(3) of EDCA specifically leaves out U.S.
contractors from the coverage of the VFA, they shall not be granted the
same entry accommodations and privileges as those enjoyed by U.S.
military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the country.259 We emphasize
that the admission of aliens into Philippine territory is "a matter of pure
permission and simple tolerance which creates no obligation on the part
of the government to permit them to stay."260 Unlike U.S. personnel who
are accorded entry accommodations, U.S. contractors are subject to
Philippine immigration laws.261 The latter must comply with our visa and
passport regulations262 and prove that they are not subject to exclusion
under any provision of Philippine immigration laws.263 The President may
also deny them entry pursuant to his absolute and unqualified power to
prohibit or prevent the admission of aliens whose presence in the country
would be inimical to public interest.264
In the same vein, the President may exercise the plenary power to expel
or deport U.S. contractors265 as may be necessitated by national security,
public safety, public health, public morals, and national interest.266 They
may also be deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act267 and the Data Privacy Act.268
In contrast, Article 111(5) of the VFA requires a request for removal from
the Philippine government before a member of the U.S. personnel may
be "dispos[ed] xx x outside of the Philippines."
c. Authorized activities of U.S. military and civilian personnel within
Philippine territory are in furtherance of the MDT and the VFA
We begin our analysis by quoting the relevant sections of the MDT and
the VFA that pertain to the activities in which U.S. military and civilian
personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist armed
attack.
Article III
The Parties, through their Foreign Ministers or their deputies, will
consult together from time to time regarding the implementation of
this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense Treaty of
August 30, 1951;
Noting that from time to time elements of the United States armed forces
may visit the Republic of the Philippines;
Considering that cooperation between the United States and the
Republic of the Philippines promotes their common security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means United
States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.
Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the
Republic of the Philippines and to abstain from any activity
inconsistent with the spirit of this agreement, and, in particular, from
any political activity in the Philippines. The Government of the United
States shall take all measures within its authority to ensure that this is
done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and
other property imported into or acquired in the Philippines by or on
behalf of the United States armed forces in connection with activities
to which this agreement applies, shall be free of all Philippine duties,
taxes and other similar charges. Title to such property shall remain with
the United States, which may remove such property from the Philippines
at any time, free from export duties, taxes, and other similar charges. x x
x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines in accordance with procedures stipulated in implementing
arrangements.
2. Vessels operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines. The movement of vessels shall be in accordance with
international custom and practice governing such vessels, and such
agreed implementing arrangements as necessary. x x x (Emphases
Supplied)
Manifest in these provisions is the abundance of references to the
creation of further "implementing arrangements" including the
identification of "activities [to be] approved by the Philippine
Government." To determine the parameters of these implementing
arrangements and activities, we referred to the content, purpose, and
framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both
countries shall engage in joint activities, so that they can maintain and
develop their defense capabilities. The wording itself evidently invites a
reasonable construction that the joint activities shall involve joint military
trainings, maneuvers, and exercises. Both the interpretation269 and the
subsequent practice270 of the parties show that the MDT independently
allows joint military exercises in the country. Lim v. Executive Secretary271
and Nicolas v. Romulo272 recognized that Balikatan exercises, which are
activities that seek to enhance and develop the strategic and
technological capabilities of the parties to resist an armed attack, "fall
squarely under the provisions of the RP-US MDT."273 In Lim, the Court
especially noted that the Philippines and the U.S. continued to conduct
joint military exercises even after the expiration of the MBA and even
before the conclusion of the VFA.274 These activities presumably related to
the Status of Forces Agreement, in which the parties agreed on the
status to be accorded to U.S. military and civilian personnel while
conducting activities in the Philippines in relation to the MDT.275
Further, it can be logically inferred from Article V of the MDT that these
joint activities may be conducted on Philippine or on U.S. soil. The article
expressly provides that the term armed attack includes "an armed attack
on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific or on its armed forces,
public vessels or aircraft in the Pacific." Surely, in maintaining and
developing our defense capabilities, an assessment or training will need
to be performed, separately and jointly by self-help and mutual aid, in the
territories of the contracting parties. It is reasonable to conclude that the
assessment of defense capabilities would entail understanding the
terrain, wind flow patterns, and other environmental factors unique to the
Philippines.
It would also be reasonable to conclude that a simulation of how to
respond to attacks in vulnerable areas would be part of the training of the
parties to maintain and develop their capacity to resist an actual armed
attack and to test and validate the defense plan of the Philippines. It is
likewise reasonable to imagine that part of the training would involve an
analysis of the effect of the weapons that may be used and how to be
prepared for the eventuality. This Court recognizes that all of this may
require training in the area where an armed attack might be directed at
the Philippine territory.
The provisions of the MDT must then be read in conjunction with those of
the VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian
personnel in the Philippines is "in connection with activities approved by
the Philippine Government." While the treaty does not expressly
enumerate or detail the nature of activities of U.S. troops in the country,
its Preamble makes explicit references to the reaffirmation of the
obligations of both countries under the MDT. These obligations include
the strengthening of international and regional security in the Pacific area
and the promotion of common security interests.
The Court has already settled in Lim v. Executive Secretary that the
phrase "activities approved by the Philippine Government" under Article I
of the VFA was intended to be ambiguous in order to afford the parties
flexibility to adjust the details of the purpose of the visit of U.S.
personnel.276 In ruling that the Terms of Reference for the Balikatan
Exercises in 2002 fell within the context of the treaty, this Court
explained:
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word "activities" arose from
accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US
forces may sojourn in Philippine territory for purposes other than
military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in
distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the
like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that "Balikatan 02-1," a
"mutual anti-terrorism advising, assisting and training exercise,"
falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that combat-related
activities - as opposed to combat itself- such as the one subject of the
instant petition, are indeed authorized. (Emphases Supplied)
The joint report of the Senate committees on foreign relations and on
national defense and security further explains the wide range and variety
of activities contemplated in the VFA, and how these activities shall be
identified:277
These joint exercises envisioned in the VFA are not limited to combat-
related activities; they have a wide range and variety. They include
exercises that will reinforce the AFP's ability to acquire new techniques
of patrol and surveillance to protect the country's maritime resources;
sea-search and rescue operations to assist ships in distress; and
disaster-relief operations to aid the civilian victims of natural calamities,
such as earthquakes, typhoons and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training in
aircraft maintenance and equipment repair; civic-action projects; and
consultations and meetings of the Philippine-U.S. Mutual Defense Board.
It is at the level of the Mutual Defense Board-which is headed jointly
by the Chief of Staff of the AFP and the Commander in Chief of the U.S.
Pacific Command-that the VFA exercises are planned. Final approval
of any activity involving U.S. forces is, however, invariably given by
the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what
activities will be conducted between the armed forces of the U.S. and
the Philippines. The VFA regulates and provides the legal framework
for the presence, conduct and legal status of U.S. personnel while
they are in the country for visits, joint exercises and other related
activities. (Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint report
of the Senate committees on foreign relations and on national
defense and security, and the ruling of this Court in Lim is that the
"activities" referred to in the treaty are meant to be specified and
identified infurther agreements. EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-
approved activities of U.S. personnel referred to in the VFA. EDCA allows
U.S. military and civilian personnel to perform "activities approved by the
Philippines, as those terms are defined in the VFA"278 and clarifies that
these activities include those conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities;
humanitarian assistance and disaster relief activities; and such other
activities as may be agreed upon by the Parties279
2. Training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of forces
and materiel; and such other activities as the Parties may agree280
3. Exercise of operational control over the Agreed Locations for
construction activities and other types of activity, including alterations and
improvements thereof281
4. Exercise of all rights and authorities within the Agreed Locations that
are necessary for their operational control or defense, including the
adoption of apfropriate measures to protect U.S. forces and contractors282
5. Use of water, electricity, and other public utilities283
6. Operation of their own telecommunication systems, including the
utilization of such means and services as are required to ensure the full
ability to operate telecommunication systems, as well as the use of the
necessary radio spectrum allocated for this purpose284
According to Article I of EDCA, one of the purposes of these activities is
to maintain and develop, jointly and by mutual aid, the individual and
collective capacities of both countries to resist an armed attack. It further
states that the activities are in furtherance of the MDT and within the
context of the VFA.
We note that these planned activities are very similar to those under the
Terms of Reference285 mentioned in Lim. Both EDCA and the Terms of
Reference authorize the U.S. to perform the following: (a) participate in
training exercises; (b) retain command over their forces; (c) establish
temporary structures in the country; (d) share in the use of their
respective resources, equipment and other assets; and (e) exercise their
right to self-defense. We quote the relevant portion of the Terms and
Conditions as follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be established.
Temporary structures such as those for troop billeting, classroom
instruction and messing may be set up for use by RP and US Forces
during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will
US Forces operate independently during field training exercises (FTX).
AFP and US Unit Commanders will retain command over their
respective forces under the overall authority of the Exercise Co-
Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not
more than six months, with the projected participation of 660 US
personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the
Exercise Co-Directors to wind up and terminate the Exercise and other
activities within the six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and
training Exercise relative to Philippine efforts against the ASG, and will
be conducted on the Island of Basilan. Further advising, assisting and
training exercises shall be conducted in Malagutay and the Zamboanga
area. Related activities in Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without
prejudice to their right of self-defense.
These terms of Reference are for purposes of this Exercise only and do
not create additional legal obligations between the US Government and
the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of
mutual military assisting, advising and
training of RP and US Forces with the primary
objective of enhancing the operational
capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate
independently within RP territory.
c. Flight plans of all aircraft involved in the
exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources,
equipment and other assets. They will use their respective logistics
channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework of
the MDT and the VFA, we find that EDCA has remained within the
parameters set in these two treaties. Just like the Terms of Reference
mentioned in Lim, mere adjustments in detail to implement the MDT and
the VFA can be in the form of executive agreements.
Petitioners assert287 that the duration of the activities mentioned in EDCA
is no longer consistent with the temporary nature of the visits as
contemplated in the VFA. They point out that Article XII(4) of EDCA has
an initial term of 10 years, a term automatically renewed unless the
Philippines or the U.S. terminates the agreement. According to
petitioners, such length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise
argues in her Concurring and Dissenting Opinion that the VFA
contemplated mere temporary visits from U.S. forces, whereas EDCA
allows an unlimited period for U.S. forces to stay in the Philippines.288
However, the provisions of EDCA directly contradict this argument by
limiting itself to 10 years of effectivity. Although this term is automatically
renewed, the process for terminating the agreement is unilateral and the
right to do so automatically accrues at the end of the 10 year period.
Clearly, this method does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have
been by chance that the VFA does not include a maximum time limit with
respect to the presence of U.S. personnel in the country. We construe
this lack of specificity as a deliberate effort on the part of the Philippine
and the U.S. governments to leave out this aspect and reserve it for the
"adjustment in detail" stage of the implementation of the treaty. We
interpret the subsequent, unconditional concurrence of the Senate in the
entire text of the VFA as an implicit grant to the President of a margin of
appreciation in determining the duration of the "temporary" presence of
U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under
EDCA is "more permanent" in nature.289 However, this argument has not
taken root by virtue of a simple glance at its provisions on the effectivity
period. EDCA does not grant permanent bases, but rather temporary
rotational access to facilities for efficiency. As Professor Aileen S.P.
Baviera notes:
The new EDCA would grant American troops, ships and planes rotational
access to facilities of the Armed Forces of the Philippines – but not
permanent bases which are prohibited under the Philippine Constitution -
with the result of reducing response time should an external threat from a
common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of
states as shown in other defense cooperation agreements. For example,
Article XIV(l) of the U.S.-Romania defense agreement provides the
following:
This Agreement is concluded for an indefinite period and shall enter
into force in accordance with the internal laws of each Party x x x.
(emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement
reads:
This Agreement has been concluded for an indefinite period of time. It
may be terminated by written notification by either Party and in that event
it terminates 2 years after the receipt of the notification. (emphasis
supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly
provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and
Annexes A and B, shall become effective on the date of the last signature
affixed below and shall remain in force until terminated by the
Parties, provided that it may be terminated by either Party upon 180 days
written notice of its intention to do so to the other Party. (emphasis
supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture
Agreement provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter
shall continue in force, but may be terminated by either Party at any
time upon one year's written notice to the other Party through diplomatic
channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but
with a term less than half of that is provided in the latter agreement. This
means that EDCA merely follows the practice of other states in not
specifying a non-extendible maximum term. This practice, however, does
not automatically grant a badge of permanency to its terms. Article XII(4)
of EDCA provides very clearly, in fact, that its effectivity is for an initial
term of 10 years, which is far shorter than the terms of effectivity between
the U.S. and other states. It is simply illogical to conclude that the initial,
extendible term of 10 years somehow gives EDCA provisions a
permanent character.
The reasoning behind this interpretation is rooted in the constitutional role
of the President who, as Commander-in-Chief of our armed forces, is the
principal strategist of the nation and, as such, duty-bound to defend our
national sovereignty and territorial integrity;291 who, as chief architect of
our foreign relations, is the head policymaker tasked to assess, ensure,
and protect our national security and interests;292 who holds the most
comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and who
has unrestricted access to highly classified military intelligence data294 that
may threaten the life of the nation. Thus, if after a geopolitical prognosis
of situations affecting the country, a belief is engendered that a much
longer period of military training is needed, the President must be given
ample discretion to adopt necessary measures including the flexibility to
set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we
acknowledge that the President may not always be able to candidly and
openly discuss the complete situation being faced by the nation. The
Chief Executive's hands must not be unduly tied, especially if the
situation calls for crafting programs and setting timelines for approved
activities. These activities may be necessary for maintaining and
developing our capacity to resist an armed attack, ensuring our national
sovereignty and territorial integrity, and securing our national interests. If
the Senate decides that the President is in the best position to define in
operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that
policy decision. If the Senate feels that there is no need to set a time limit
to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to
the extent of the "temporary" nature of the visits of U.S. personnel does
not suggest that the duration to which the President may agree is
unlimited. Instead, the boundaries of the meaning of the term temporary
in Article I of the treaty must be measured depending on the purpose of
each visit or activity.295 That purpose must be analyzed on a case-by-case
basis depending on the factual circumstances surrounding the conclusion
of the implementing agreement. While the validity of the President's
actions will be judged under less stringent standards, the power of this
Court to determine whether there was grave abuse of discretion remains
unimpaired.
d. Authorized activities performed by US. contractors within Philippine
territory - who were legitimately permitted to enter the country
independent of EDCA - are subject to relevant Philippine statutes and
regulations and must be consistent with the MDT and the VFA
Petitioners also raise296 concerns about the U.S. government's purported
practice of hiring private security contractors in other countries. They
claim that these contractors - one of which has already been operating in
Mindanao since 2004 - have been implicated in incidents or scandals in
other parts of the globe involving rendition, torture and other human rights
violations. They also assert that these contractors employ paramilitary
forces in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to
perform only the following activities:
1. Training; transit; support and related activities; refueling
of aircraft; bunkering of vessels; temporary maintenance
of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel;
deployment of forces and materiel; and such other
activities as the Parties may agree297
2. Prepositioning and storage of defense equipment,
supplies, and materiel, including delivery, management,
inspection, use, maintenance, and removal of such
equipment, supplies and materiel298
3. Carrying out of matters in accordance with, and to the
extent permissible under, U.S. laws, regulations, and
policies299
EDCA requires that all activities within Philippine territory be in
accordance with Philippine law. This means that certain privileges denied
to aliens are likewise denied to foreign military contractors. Relevantly,
providing security300 and carrying, owning, and possessing firearms301 are
illegal for foreign civilians.
The laws in place already address issues regarding the regulation of
contractors. In the 2015 Foreign Investment Negative list,302 the Executive
Department has already identified corporations that have equity
restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private
security agencies that cannot have any foreign equity by virtue of Section
4 of Republic Act No. 5487;303 and No. 15, which regulates contracts for
the construction of defense-related structures based on Commonwealth
Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA
must subscribe to corporate and civil requirements imposed by the law,
depending on the entity's corporate structure and the nature of its
business.
That Philippine laws extraneous to EDCA shall govern the regulation of
the activities of U.S. contractors has been clear even to some of the
present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was
accused of spilling fuel in the waters off Manila Bay.304 The Senate
Committee on Foreign Relations and the Senate Committee on
Environment and Natural Resources chairperson claimed environmental
and procedural violations by the contractor.305 The U.S. Navy investigated
the contractor and promised stricter guidelines to be imposed upon its
contractors.306 The statement attributed to Commander Ron Steiner of the
public affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy
contractors are bound by Philippine laws - is of particular relevance. The
statement acknowledges not just the presence of the contractors, but
also the U.S. position that these contractors are bound by the local laws
of their host state. This stance was echoed by other U.S. Navy
representatives.307
This incident simply shows that the Senate was well aware of the
presence of U.S. contractors for the purpose of fulfilling the terms of the
VFA. That they are bound by Philippine law is clear to all, even to the
U.S.
As applied to EDCA, even when U.S. contractors are granted access to
the Agreed Locations, all their activities must be consistent with
Philippine laws and regulations and pursuant to the MDT and the VFA.
While we recognize the concerns of petitioners, they do not give the
Court enough justification to strike down EDCA. In Lim v. Executive
Secretary, we have already explained that we cannot take judicial notice
of claims aired in news reports, "not because of any issue as to their
truth, accuracy, or impartiality, but for the simple reason that facts must
be established in accordance with the rules of evidence."308 What is more,
we cannot move one step ahead and speculate that the alleged illegal
activities of these contractors in other countries would take place in the
Philippines with certainty. As can be seen from the above discussion,
making sure that U.S. contractors comply with Philippine laws is a
function of law enforcement. EDCA does not stand in the way of law
enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly excluded
from the coverage of the VFA. As visiting aliens, their entry, presence,
and activities are subject to all laws and treaties applicable within the
Philippine territory. They may be refused entry or expelled from the
country if they engage in illegal or undesirable activities. There is nothing
that prevents them from being detained in the country or being subject to
the jurisdiction of our courts. Our penal laws,309 labor laws,310 and
immigrations laws311 apply to them and therefore limit their activities here.
Until and unless there is another law or treaty that specifically deals with
their entry and activities, their presence in the country is subject to
unqualified Philippine jurisdiction.
EDCA does not allow the presence of U.S.-owned or -controlled
military facilities and bases in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment of
U.S. military bases through the "euphemistically" termed "Agreed
Locations. "312 Alluding to the definition of this term in Article II(4) of
EDCA, they point out that these locations are actually military bases, as
the definition refers to facilities and areas to which U.S. military forces
have access for a variety of purposes. Petitioners claim that there are
several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas
once they are no longer needed by U.S. forces, indicating that there
would be some transfer of use. Second, Article IV(4) ofEDCA talks about
American forces' unimpeded access to the Agreed Locations for all
matters relating to the prepositioning and storage of U.S. military
equipment, supplies, and materiel. Third, Article VII of EDCA authorizes
U.S. forces to use public utilities and to operate their own
telecommunications system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of
EDCA by presenting so-called "badges of exclusivity," despite the
presence of contrary provisions within the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However, the
use of the word "return" is within the context of a lengthy provision. The
provision as a whole reads as follows:
The United States shall return to the Philippines any Agreed Locations, or
any portion thereof, including non-relocatable structures and assemblies
constructed, modified, or improved by the United States, once no longer
required by United States forces for activities under this Agreement. The
Parties or the Designated Authorities shall consult regarding the terms of
return of any Agreed Locations, including possible compensation for
improvements or construction.
The context of use is "required by United States forces for activities under
this Agreement." Therefore, the return of an Agreed Location would be
within the parameters of an activity that the Mutual Defense Board (MDB)
and the Security Engagement Board (SEB) would authorize. Thus,
possession by the U.S. prior to its return of the Agreed Location would be
based on the authority given to it by a joint body co-chaired by the "AFP
Chief of Staff and Commander, U.S. PACOM with representatives from
the Philippines' Department of National Defense and Department of
Foreign Affairs sitting as members."313 The terms shall be negotiated by
both the Philippines and the U.S., or through their Designated Authorities.
This provision, seen as a whole, contradicts petitioners' interpretation of
the return as a "badge of exclusivity." In fact, it shows the cooperation
and partnership aspect of EDCA in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a
contextual perspective. Article IV(4) states that U.S. forces and U.S.
contractors shall have "unimpeded access to Agreed Locations for all
matters relating to the prepositioning and storage of defense equipment,
supplies, and materiel, including delivery, management, inspection, use,
maintenance, and removal of such equipment, supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the
U.S. the authority to bring in these equipment, supplies, and materiel
through the MDB and SEB security mechanism. These items are owned
by the U.S.,314 are exclusively for the use of the U.S.315 and, after going
through the joint consent mechanisms of the MDB and the SEB, are
within the control of the U.S.316 More importantly, before these items are
considered prepositioned, they must have gone through the process of
prior authorization by the MDB and the SEB and given proper notification
to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is a
necessary adjunct to the ownership, use, and control of the U.S. over its
own equipment, supplies, and materiel and must have first been allowed
by the joint mechanisms in play between the two states since the time of
the MDT and the VFA. It is not the use of the Agreed Locations that is
exclusive per se; it is mere access to items in order to exercise the rights
of ownership granted by virtue of the Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities
and to operate their own telecommunications system, it will be met and
answered in part D, infra.
To our mind, both EDCA and the MBA simply incorporate what is already
the law of the land in the Philippines. The Civil Code's provisions on
ownership, as applied, grant the owner of a movable property full rights
over that property, even if located in another person's property.324
The parallelism, however, ends when the situation involves facilities that
can be considered immovable. Under the MBA, the U.S. retains
ownership if it paid for the facility.325 Under EDCA, an immovable is owned
by the Philippines, even if built completely on the back of U.S. funding.326
This is consistent with the constitutional prohibition on foreign land
ownership.327

Petitioners also point out319 that EDCA is strongly reminiscent of and in
fact bears a one-to-one correspondence with the provisions of the 1947
MBA. They assert that both agreements (a) allow similar activities within
the area; (b) provide for the same "species of ownership" over facilities;
and (c) grant operational control over the entire area. Finally, they argue320
that EDCA is in fact an implementation of the new defense policy of the
U.S. According to them, this policy was not what was originally intended
either by the MDT or by the VFA.
On these points, the Court is not persuaded.
Despite the apparent similarity, the ownership of property is but a part of
a larger whole that must be considered before the constitutional
restriction is violated. Thus, petitioners' points on operational control will
be given more attention in the discussion below. The arguments on policy
are, however, outside the scope of judicial review and will not be
discussed
Moreover, a direct comparison of the MBA and EDCA will result in
several important distinctions that would allay suspicion that EDCA is but
a disguised version of the MBA.

The similar activities cited by petitioners321 simply show that under the b. There are substantial matters that the US. cannot do under EDCA, but
MBA, the U.S. had the right to construct, operate, maintain, utilize, which it was authorized to do under the 1947 MBA
occupy, garrison, and control the bases. The so-called parallel provisions
of EDCA allow only operational control over the Agreed Locations The Philippine experience with U.S. military bases under the 1947 MBA
specifically for construction activities. They do not allow the overarching is simply not possible under EDCA for a number of important reasons.
power to operate, maintain, utilize, occupy, garrison, and control a base
with full discretion. EDCA in fact limits the rights of the U.S. in respect of First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and
every activity, including construction, by giving the MDB and the SEB the over Philippine territory occupied by American bases. In contrast, the
power to determine the details of all activities such as, but not limited to, U.S. under EDCA does not enjoy any such right over any part of the
operation, maintenance, utility, occupancy, garrisoning, and control.322 Philippines in which its forces or equipment may be found. Below is a
comparative table between the old treaty and EDCA:
The "species of ownership" on the other hand, is distinguished by the
nature of the property. For immovable property constructed or developed
by the U.S., EDCA expresses that ownership will automatically be vested 1947 MBA/ 1946 Treaty of General EDCA
to the Philippines. On the other hand, for movable properties brought
323 Relations
into the Philippines by the U.S., EDCA provides that ownership is
1947 MBA, Art. I(1): EDCA, preamble:
retained by the latter. In contrast, the MBA dictates that the U.S. retains
ownership over immovable and movable properties.
The Government of the Republic of the Affirming that the Parties share
Philippines (hereinafter referred to as the understanding for the United States not
 ilippines) grants to the Government of the establish a permanent military presence or
nited States of America (hereinafter base in the territory of the Philippines;
erred to as the United States) the right to
ain the use of the bases in the x x x x
ilippines listed in Annex A attached hereto.
47 MBA, Art. XVII(2):
buildings and structures which are
ected by the United States in the bases
all be the property of the United States
d may be removed by it before the
piration of this Agreement or the earlier
inquishment of the base on which the
uctures are situated. There shall be no
ligation on the part of the Philippines or of
e United States to rebuild or repair any
struction or damage inflicted from any
use whatsoever on any of the said buildings
structures owned or used by the United
ates in the bases. x x x x.
46 Treaty of Gen. Relations, Art. I:
e United States of America agrees to further
hdraw and surrender, and does hereby arrangements.
hdraw and surrender, all rights of
ssession, supervision, jurisdiction, EDCA, Art. V:
ntrol or sovereignty existing and
ercised by the United States of America in
d over the territory and the people of the
ilippine Islands, except the use of such
ses, necessary appurtenances to such
ses, and the rights incident thereto, as x x x x
e United States of America, by agreement
h the Republic of the Philippines may deem 4. All buildings, non-relocatable
cessary to retain for the mutual protection
the Republic of the Philippines and of the
ited States of America. x x x.
States forces until no longer required
United States forces.
Recognizing that all United States accessSecond,
to in the bases agreement, the U.S. and the Philippines were
and use of facilities and areas will be at the
visibly not on equal footing when it came to deciding whether to expand
invitation of the Philippines and with full or to increase the number of bases, as the Philippines may be compelled
respect for the Philippine Constitution and
to negotiate with the U.S. the moment the latter requested an expansion
Philippine laws;
of the existing bases or to acquire additional bases. In EDCA, U.S.
access is purely at the invitation of the Philippines.
xxxx
EDCA, Art. II(4): 1947 MBA/ 1946 Treaty of General EDCA
Relations
"Agreed Locations" means facilities1947 MBA, and Art.I(3): EDCA, preamble:
areas that are provided by the Government
of the Philippines through the AFP and that
The Philippines agree to enter into Recognizing that all United States access
United States forces, United States
negotiations with the United States at the and use of facilities and areas will be at t
contractors, and others as mutually agreed,
latter's request, to permit the United States invitation of the Philippines and with f
shall have the right to access and use
to expand such bases, to exchange such respect for the Philippine Constitution a
pursuant to this Agreement. Such Agreed
bases for other bases, to acquire additional Philippine laws;
Locations may be listed in an annex to be
bases, or relinquish rights to bases, as any of
appended to this Agreement, and may be
such exigencies may be required by military xxxx
described in implementing
necessity.
EDCA. Art. II(4):
1946 Treaty of Gen. Relations, Art. I:
"Agreed Locations" means facilities a
The United States of America agrees to areas that are provided by the Governme
1. The Philippines shall retain ownership of
withdraw and surrender, and does hereby of the Philippines through the AFP and th
and title to Agreed Locations.
withdraw and surrender, all rights of United States forces, United Stat
possession, supervision, jurisdiction, contractors, and others as mutually agree
control or sovereignty existing and shall have the right to access and u
exercised by the United States of America in pursuant to this Agreement. Such Agre
andstructures,
over the territory and the people of the Locations may be listed in an annex to
and assemblies affixed to the land
Philippinein the
Islands, except the use of such appended to this Agreement, and may
Agreed Locations, including ones altered or
bases, necessary appurtenances to such further described in implementi
improved by United States forces, bases,remain
and the rights incident thereto, as the arrangements.
the property of the Philippines. Permanent
United States of America, by agreement
buildings constructed by United withStatesthe
forces
Republic of the Philippines may
become the property of the Philippines, once
deem necessary to retain for the mutual
constructed, but shall be used by United
protection of the Republic of the Philippines
d of the United States of America. x x x.
Third, in EDCA, the Philippines is- guaranteed access over the entire
area of the Agreed Locations. On the other hand, given that the U.S. had
complete control over its military bases under the 1947 MBA, the treaty
did not provide for any express recognition of the right of accessthe
Philippine authorities. Without that provision and in light of the retention of
U.S. sovereignty over the old military bases, the U.S. could effectively
prevent Philippine authorities from entering those bases.
47 MBA EDCA
equivalent provision. EDCA, Art. III(5):
1947 MBA, Art. III(1): alterations and improvements to, Agre
Locations. United States forces sh
It is mutually agreed that the United States consult on issues regarding su
construction, alterations, a
shall have the rights, power and authority
within the bases which are necessary for improvements based on the Parties' shar
intent that the technical requirements a
of establishment, use, operation and construction standards of any such projec
defense
thereof or appropriate for the
control thereof and all the rights, power and undertaken by or on behalf of United Stat
forces should be consistent with t
authority within the limits of territorial
waters and air space adjacent to, or in the requirements and standards of both Parties.
vicinity of, the bases which are necessary to
provide access to them, or appropriate for
their control.

The Philippine Designated Authority and Fifth, the U.S. under the bases agreement was given the authority to use
its authorized representative shall have Philippine territory for additional staging areas, bombing and gunnery
access to the entire area of the Agreed ranges. No such right is given under EDCA, as seen below:
Locations. Such access shall be provided
promptly consistent with operational safety
1947 MBA EDCA
and security requirements in accordance with
agreed procedures developed by1947
the Parties.
MBA, Art. VI: EDCA, Art. III(1):

The United States shall, subject to previous With consideration of the views of t
Fourth, in the bases agreement, the U.S. retained the right, power, and
agreement with the Philippines, have the right Parties, the Philippines hereby authoriz
authority over the establishment, use, operation, defense, and control of
to use land and coastal sea areas of
military bases, including the limits of territorial waters and air space and agrees that United States forces, Unit
adjacent to or in the vicinity of those bases. The only standard usedappropriate
in size and location for periodic States contractors, and vehicles, vessels, a
maneuvers,
determining the extent of its control was military necessity. On the other for additional staging areas, aircraft operated by or for United States forc
bombing
hand, there is no such grant of power or authority under EDCA. It merely and gunnery ranges, and for may conduct the following activities w
allows the U.S. to exercise operational control over the constructionsuch
of intermediate airfields as may be respect to Agreed Locations: training; trans
Philippine-owned structures and facilities: required for safe and efficient air operations. support and related activities; refueling
Operations in such areas shall be carried on aircraft; bunkering of vessels; tempora
with due regard and safeguards for the public maintenance of vehicles, vessels, and aircra
47 MBA EDCA safety. temporary accommodation of personn
communications; prepositioning of equipme
47 MBA, Art.I(2): EDCA, Art. III(4): 1947 MBA, Art.I(2): supplies, and materiel; deploying forces a
materiel; and such other activities as t
e Philippines agrees to permit the United The Philippines hereby grants to the United
The Philippines agrees to permit the United Parties may agree.
ates, upon notice to the Philippines, to use States, through bilateralStates,
security
upon notice to the Philippines, to use
ch of those bases listed in Annex B as the mechanisms, such as the MDB such of SEB,
and those bases listed in Annex B as the
nited States determines to be required by operational control of Agreed Locations for determines to be required by
United States
litary necessity. construction activities and military
authority to
necessity.
undertake such activities on, and make
 Sixth, under the MBA, the U.S. was given the right, power, and authority roads, highways, railroads, bridges, viaducts, canals, lakes, rivers, and
to control and prohibit the movement and operation of all types of streams in the Philippines in the same manner that Philippine military
vehicles within the vicinity of the bases. The U.S. does not have any right, forces enjoyed that right. No such arrangement appears in EDCA. In fact,
power, or authority to do so under EDCA. it merely extends to U.S. forces temporary access to public land and
facilities when requested:
47 MBA EDCA
1947 MBA EDCA
47 MBA, Art. 111(2)(c) No equivalent provision.
1947 MBA, Art. VII: EDCA, Art. III(2):
ch rights, power and authority shall include,
er alia, the right, power and authority: x x It is mutually agreed that the United States When requested, the Designated Authority
x to control (including the right to prohibit) may employ and use for United States the Philippines shall assist in facilitati
so far as may be required for the efficient military forces any and all public utilities, transit or temporary access by Unit
eration and safety of the bases, and within other services and facilities, airfields, ports, States forces to public land and faciliti
e limits of military necessity, anchorages, harbors, roads, highways, railroads, bridges, (including roads, ports, and airfield
oorings, landings, takeoffs, movements viaducts, canals, lakes, rivers and streams in including those owned or controlled by loc
d operation of ships and water-borne the Philippines under conditions no less governments, and to other land and faciliti
aft, aircraft and other vehicles on water, favorable than those that may be applicable (including roads, ports, and airfields).
the air or on land comprising from time to time to the military forces of the
Philippines.
Seventh, under EDCA, the U.S. is merely given temporary access to
land and facilities (including roads, ports, and airfields). On the other Ninth, under EDCA, the U.S. no longer has the right, power, and
hand, the old treaty gave the U.S. the right to improve and deepen the authority to construct, install, maintain, and employ any type of facility,
harbors, channels, entrances, and anchorages; and to construct or weapon, substance, device, vessel or vehicle, or system unlike in the old
maintain necessary roads and bridges that would afford it access to its treaty. EDCA merely grants the U.S., through bilateral security
military bases. mechanisms, the authority to undertake construction, alteration, or
improvements on the Philippine-owned Agreed Locations.
47 MBA EDCA
1947 MBA EDCA
47 MBA, Art. III(2)(b): EDCA, Art. III(2):
1947 MBA, Art. III(2)(e): EDCA, Art. III(4):
ch rights, power and authority shall include, When requested, the Designated Authority of
er alia, the right, power and authority: x x the Philippines shall assist inSuch facilitating
rights, power and authority shall include, The Philippines hereby grants to the Unit
x to improve and deepen the harbors, transit or temporary accessinter byalia,
United
the right, power and authority: x x States, through bilateral secur
annels, entrances and anchorages, and States forces to public land xandx facilities
to construct, install, maintain, and mechanisms, such as the MDB and SE
construct or maintain necessary roads (including roads, ports, and employ
airfields),
on any base any type of facilities, operational control of Agreed Locations
d bridges affording access to the bases. including those owned or controlled weapons,
by localsubstance, device, vessel or construction activities and authority
governments, and to other land vehicle and facilities
on or under the ground, in the air or undertake such activities on, and ma
(including roads, ports, and airfields).
on or under the water that may be requisite or alterations and improvements to, Agre
appropriate, including meteorological systems, Locations. United States forces shall cons
aerial and water navigation lights, radio and on issues regarding such constructio
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use radar apparatus and electronic devices, of any alterations, and improvements based on t
any and all public utilities, services and facilities, airfields, ports, harbors,
sired power, type of emission and Parties' shared intent that the technicaltheir families, in connection with the construction, maintenance, or
quency. requirements and construction standards operation
of of the bases. EDCA strictly adheres to the limits under the VFA.
any such projects undertaken by or on behalf
of United States forces should be consistent
1947 MBA EDCA
with the requirements and standards of both
Parties. 1947 MBA, Art. XI(l): EDCA, Art. II:

Tenth, EDCA does not allow the U.S. to acquire, by condemnation or
expropriation proceedings, real property belonging to any private person.
The old military bases agreement gave this right to the U.S. as seen
below:
47 MBA
47 MBA, Art. XXII(l):
henever it is necessary to acquire by
ndemnation or expropriation
oceedings real property belonging to
y private persons, associations or
rporations located in bases named in Annex
and Annex B in order to carry out the
rposes of this Agreement, the Philippines
l institute and prosecute such
ndemnation or expropriation proceedings in
cordance with the laws of the Philippines.
e United States agrees to reimburse the
ilippines for all the reasonable expenses,
mages and costs therebv incurred,
luding the value of the property as
termined by the Court. In addition, subject
the mutual agreement of the two
overnments, the United States will
mburse the Philippines for the reasonable
sts of transportation and removal of any
cupants displaced or ejected by reason of
e condemnation or expropriation.
It is mutually agreed that the United States 1. "United States personnel" means Unit
shall have the right to bring into the States military and civilian personn
Philippines members of the United States temporarily in the territory of the Philippines
military forces and the United States connection with activities approved by t
nationals employed by or under a contract Philippines, as those terms are defined
with the United States together with their the VFA.
EDCA families, and technical personnel of other
nationalities (not being persons excluded by x xx x
No equivalent provision. the laws of the Philippines) in connection with
the construction, maintenance, or operation of 3. "United States contractors" mea
the bases. The United States shall make companies and firms, and their employee
suitable arrangements so that such persons under contract or subcontract to or on beh
may be readily identified and their status of the United States Department of Defens
established when necessary by the Philippine United States contractors are not included
authorities. Such persons, other than part of the definition of United Stat
members of the United States armed forces in personnel in this Agreement, includi
uniform, shall present their travel documents within the context of the VFA.
to the appropriate Philippine authorities for
visas, it being understood that no objection
will be made to their travel to the
Philippines as non-immigrants.
Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any
offense committed by any person within the Agreed Locations, unlike in
the former military bases:
1947 MBA EDCA
1947 MBA, Art. XIII(l)(a): No equivalent provision.
The Philippines consents that the United

States shall have the right to exercise

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the
jurisdiction over the following offenses: (a)
country non-Philippine nationals who are under its employ, together with
Any offense committed by any person within
 y base except where the offender and Nevertheless, a comprehensive review of what the Constitution means by
ended parties are both Philippine citizens "foreign military bases" and "facilities" is required before EDCA can be
ot members of the armed forces of the deemed to have passed judicial scrutiny.
ited States on active duty) or the offense is
ainst the security of the Philippines. c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino

Thirteenth, EDCA does not allow the U.S. to operate military post
exchange (PX) facilities, which is free of customs duties and taxes, unlike
what the expired MBA expressly allowed. Parenthetically, the PX store
has become the cultural icon of U.S. military presence in the country.
47 MBA EDCA
47 MBA, Art. XVIII(l): No equivalent provision.
people in 1987, would be vital in determining whether EDCA breached
the constitutional restriction.
Prior to the drafting of the 1987 Constitution, the last definition of "military
base" was provided under Presidential Decree No. (PD) 1227.328 Unlawful
entry into a military base is punishable under the decree as supported by
Article 281 of the Revised Penal Code, which itself prohibits the act of
trespass.

s mutually agreed that the United States Section 2 of the law defines the term in this manner: "'[M]ilitary base' as
used in this decree means any military, air, naval, or coast guard
all have the right to establish on bases, reservation, base, fort, camp, arsenal, yard, station, or installation in the
e of all licenses; fees; sales, excise or Philippines."
her taxes, or imposts; Government
encies, including concessions, such as Commissioner Tadeo, in presenting his objections to U.S. presence in the
les commissaries and post exchanges; Philippines before the 1986 Constitutional Commission, listed the areas
esses and social clubs, for the exclusive that he considered as military bases:
e of the United States military forces and
thorized civilian personnel and their 1,000 hectares Camp O'Donnel
milies. The merchandise or services sold or
pensed by such agencies shall be free of 20,000 hectares Crow Valley Weapon's Range
taxes, duties and inspection by the
ilippine authorities. Administrative
easures shall be taken by the appropriate 55,000 hectares Clark Air Base
thorities of the United States to prevent the
sale of goods which are sold under the 150 hectares Wallace Air Station
ovisions of this Article to persons not
titled to buy goods at such agencies and, 400 hectares John Hay Air Station
nerally, to prevent abuse of the privileges
anted under this Article. There shall be 15,000 hectares Subic Naval Base
operation between such authorities and the
ilippines to this end. 1,000 hectares San Miguel Naval Communication

In sum, EDCA is a far cry from a basing agreement as was understood 750 hectares Radio Transmitter in Capas, Tarlac
by the people at the time that the 1987 Constitution was adopted.
900 hectares Radio Bigot Annex at Bamban, Tarlac329
The Bases Conversion and Development Act of 1992 described its
coverage in its Declaration of Policies:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the
Government to accelerate the sound and balanced conversion into
alternative productive uses of the Clark and Subic military reservations
and their extensions (John Hay Station, Wallace Air Station, O'Donnell
Transmitter Station, San Miguel Naval Communications Station and
Capas Relay Station), to raise funds by the sale of portions of Metro
Manila military camps, and to apply said funds as provided herein for the
development and conversion to productive civilian use of the lands
covered under the 194 7 Military Bases Agreement between the
Philippines and the United States of America, as amended.330
The result of the debates and subsequent voting is Section 25, Article
XVIII of the Constitution, which specifically restricts, among others,
foreign military facilities or bases. At the time of its crafting of the
Constitution, the 1986 Constitutional Commission had a clear idea of
what exactly it was restricting. While the term "facilities and bases" was
left undefined, its point of reference was clearly those areas covered by
the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-evolving
world of military technology and geopolitics has surpassed the
understanding of the Philippine people in 1986. The last direct military
action of the U.S. in the region was the use of Subic base as the staging
ground for Desert Shield and Desert Storm during the Gulf War.331 In
1991, the Philippine Senate rejected the successor treaty of the 1947
MBA that would have allowed the continuation of U.S. bases in the
Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to
evolve likewise, taking into consideration the subsisting agreements
between both parties, the rejection of the 1991 proposal, and a concrete
understanding of what was constitutionally restricted. This trend birthed
the VFA which, as discussed, has already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed
"Agreed Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the
Philippines through the AFP and that United States forces, United States
contractors, and others as mutually agreed, shall have the right to access
and use pursuant to this Agreement. Such Agreed Locations may be
listed in an annex to be appended to this Agreement, and may be further
described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the
Philippines shall retain ownership of and title to the Agreed Locations
means that EDCA is "consistent with Article II of the VFA which
recognizes Philippine sovereignty and jurisdiction over locations within
Philippine territory.333
By this interpretation, respondent acknowledges that the contention of
petitioners springs from an understanding that the Agreed Locations
merely circumvent the constitutional restrictions. Framed differently, the
bone of contention is whether the Agreed Locations are, from a legal
perspective, foreign military facilities or bases. This legal framework
triggers Section 25, Article XVIII, and makes Senate concurrence a sine
qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is
authorized by the Philippines to "conduct the following activities: "training;
transit; support and related activities; refueling of aircraft; bunkering of
vessels; temporary maintenance of vehicles, vessels and aircraft;
temporary accommodation of personnel; communications; prepositioning
of equipment, supplies and materiel; deploying forces and materiel; and
such other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation
of the Section 25 restriction.
d. Reasons for the constitutional requirements and legal standards for
constitutionally compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or
base." While it specifically alludes to U.S. military facilities and bases that
existed during the framing of the Constitution, the provision was clearly
meant to apply to those bases existing at the time and to any future
facility or base. The basis for the restriction must first be deduced from
the spirit of the law, in order to set a standard for the application of its
text, given the particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to
glean, from their collective wisdom, the intent of Section 25. Their
speeches are rich with history and wisdom and present a clear picture of
what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-
bases provisions with what purports to be an objective presentation of the
historical background of the military bases in the Philippines. Care
appears, however, to have been taken to underscore the inequity in
their inception as well as their implementation, as to seriously reflect
on the supposed objectivity of the report. Pronouncements of military and
civilian officials shortly after World War II are quoted in support of the
proposition on neutrality; regrettably, the implication is that the same
remains valid today, as if the world and international activity stood still for
the last 40 years.
We have been given inspired lectures on the effect of the presence
of the military bases on our sovereignty - whether in its legal or
political sense is not clear - and the theory that any country with
foreign bases in its territory cannot claim to be fully sovereign or
completely independent. I was not aware that the concepts of
sovereignty and independence have now assumed the totality principle,
such that a willing assumption of some delimitations in the exercise of
some aspects thereof would put that State in a lower bracket of
nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and
cons on the advisability of having military bases within our shores. Most
of us who, only about three months ago, were just mulling the prospects
of these varying contentions are now expected, like armchair generals, to
decide not only on the geopolitical aspects and contingent implications of
the military bases but also on their political, social, economic and cultural
impact on our national life. We are asked to answer a plethora of
questions, such as: 1) whether the bases are magnets of nuclear attack
or are deterrents to such attack; 2) whether an alliance or mutual defense
treaty is a derogation of our national sovereignty; 3) whether criticism of
us by Russia, Vietnam and North Korea is outweighed by the support for
us of the ASEAN countries, the United States, South Korea, Taiwan,
Australia and New Zealand; and 4) whether the social, moral and legal
problems spawned by the military bases and their operations can be
compensated by the economic benefits outlined in papers which have
been furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal
and forceful assertions of their positions. They are entitled to the luxury of
the absolutes. We are urged now to adopt the proposed declaration
as a "golden," "unique" and "last" opportunity for Filipinos to assert
their sovereign rights. Unfortunately, I have never been enchanted by
superlatives, much less for the applause of the moment or the ovation of
the hour. Nor do I look forward to any glorious summer after a winter of
political discontent. Hence, if I may join Commissioner Laurel, I also
invoke a caveat not only against the tyranny of labels but also the tyranny
of slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the
problem of the removal of foreign bases from the Philippines have been
adequately treated by previous speakers. Let me, therefore, just
recapitulate the arguments adduced in favor of a foreign bases-free
Philippines:
1. That every nation should be free to shape its own
destiny without outside interference;
2. That no lasting peace and no true sovereignty would
ever be achieved so long as there are foreign military
forces in our country;
3. That the presence of foreign military bases deprives
us of the very substance of national sovereignty and
this is a constant source of national embarrassment and
an insult to our national dignity and selfrespect as a
nation;
 4. That these foreign military bases unnecessarily
expose our country to devastating nuclear attacks;
5. That these foreign military bases create social
problems and are designed to perpetuate the strangle-
hold of United States interests in our national economy
and development;
6. That the extraterritorial rights enjoyed by these
foreign bases operate to deprive our country of
jurisdiction over civil and criminal offenses committed
within our own national territory and against Filipinos;
7. That the bases agreements are colonial impositions
and dictations upon our helpless country; and
8. That on the legal viewpoint and in the ultimate analysis,
all the bases agreements are null and void ab initio,
especially because they did not count the sovereign
consent and will of the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could
accommodate the provisions I have cited, what is our objection to include
in our Constitution a matter as priceless as the nationalist values we
cherish? A matter of the gravest concern for the safety and survival
of this nation indeed deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-respect as
a nation and the future of generations to come with thirty pieces of
silver?339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear weapons
wherever they are found and whoever owns them is that those are for
killing people or for terrorizing humanity. This objective by itself at any
point in history is morally repugnant. This alone is reason enough for us
to constitutionalize the ban on foreign military bases and on nuclear
weapons.341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily
to remove the bases because even if the bases are removed, the girls
mired in poverty will look for their clientele elsewhere. The remedy to the
problem of prostitution lies primarily elsewhere - in an alert and
concerned citizenry, a healthy economy and a sound education in
values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign
military bases here is that they impair portions of our sovereignty.
While I agree that our country's sovereignty should not be impaired, I also
hold the view that there are times when it is necessary to do so according
to the imperatives of national interest. There are precedents to this effect.
Thus, during World War II, England leased its bases in the West Indies
and in Bermuda for 99 years to the United States for its use as naval and
air bases. It was done in consideration of 50 overaged destroyers which
the United States gave to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United
States for the latter's use as a naval base in the Indian Ocean. About the
same time, the United States obtained bases in Spain, Egypt and Israel.
In doing so, these countries, in effect, contributed to the launching of a
preventive defense posture against possible trouble in the Middle East
and in the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the
presence of American troops in the country is a projection of America's
security interest. Enrile said that nonetheless, they also serve, although in
an incidental and secondary way, the security interest of the Republic of
the Philippines and the region. Yes, of course, Mr. Enrile also echoes the
sentiments of most of us in this Commission, namely: It is ideal for us as
an independent and sovereign nation to ultimately abrogate the RP-
US military treaty and, at the right time, build our own air and naval
might.347
xxxx
Allow me to say in summation that I am for the retention of
American military bases in the Philippines provided that such an
extension from one period to another shall be concluded upon
concurrence of the parties, and such extension shall be based on
justice, the historical amity of the people of the Philippines and the
United States and their common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this
task of framing a constitution, I read a statement of President Aquino to
the effect that she is for the removal of the U.S. military bases in this
country but that the removal of the U.S. military bases should not be done
just to give way to other foreign bases. Today, there are two world
superpowers, both vying to control any and all countries which have
importance to their strategy for world domination. The Philippines is one
such country.
Madam President, I submit that I am one of those ready to completely
remove any vestiges of the days of enslavement, but not prepared to
erase them if to do so would merely leave a vacuum to be occupied by a
far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our
brethren in the Middle East, in Indo-China, Central America, in South
Africa - there has been escalation of war in some of these areas because
of foreign intervention which views these conflicts through the narrow
prism of the East-West conflict. The United States bases have been
used as springboards for intervention in some of these conflicts.
We should not allow ourselves to be party to the warlike mentality of
these foreign interventionists. We must always be on the side of peace
– this means that we should not always rely on military solution.352
xxxx
x x x The United States bases, therefore, are springboards for
intervention in our own internal affairs and in the affairs of other
nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its
fundamental freedoms which should logically be declared in black and
white in our fundamental law of the land - the Constitution. Let us
express our desire for national sovereignty so we may be able to
achieve national self-determination. Let us express our desire for
neutrality so that we may be able to follow active nonaligned independent
foreign policies. Let us express our desire for peace and a nuclear-free
zone so we may be able to pursue a healthy and tranquil existence, to
have peace that is autonomous and not imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases?
Para sa magbubukid, ang kahulugan nito ay pagkaalipin. Para sa
magbubukid, ang pananatili ng U.S. military bases ay tinik sa dibdib ng
sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang
magbubukid, ang ibig sabihin ng U.S. military bases ay batong pabigat
na patuloy na pinapasan ng sambayanang Pilipino. Para sa
sambayanang magbubukid, ang pananatili ng U.S. military bases ay
isang nagdudumilat na katotohanan ng patuloy na paggahasa ng
imperyalistang Estados Unidos sa ating Inang Bayan -
economically, politically and culturally. Para sa sambayanang
magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear
weapon - ang kahulugan ay magneto ng isang nuclear war. Para sa
sambayanang magbubukid, ang kahulugan ng U.S. military bases ay
isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the
instruments of domination and subservience has clearly been defined
these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my support
for the committee's position to enshrine in the Constitution a fundamental
principle forbidding foreign military bases, troops or facilities in any part of
the Philippine territory as a clear and concrete manifestation of our
inherent right to national self-determination, independence and
sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of
genuine nationhood to the social cost of allowing foreign countries to
maintain military bases in our country. Previous speakers have dwelt on
this subject, either to highlight its importance in relation to the other
issues or to gloss over its significance and !llake this a part of future
negotiations.357
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is one of
the solutions and is the response of the Filipino people against this
condition and other conditions that have already been clearly and
emphatically discussed in past deliberations. The deletion, therefore, of
Section 3 in the Constitution we are drafting will have the following
implications:
First, the failure of the Constitutional Commission to decisively respond to
the continuing violation of our territorial integrity via the military
bases agreement which permits the retention of U.S. facilities within
the Philippine soil over which our authorities have no exclusive
jurisdiction contrary to the accepted definition of the exercise of
sovereignty.
Second, consent by this forum, this Constitutional Commission, to an
exception in the application of a provision in the Bill of Rights that
we have just drafted regarding equal application of the laws of the land to
all inhabitants, permanent or otherwise, within its territorial boundaries.
Third, the continued exercise by the United States of
extraterritoriality despite the condemnations of such practice by the
world community of nations in the light of overwhelming international
approval of eradicating all vestiges of colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic sovereignty, in
the hope that such can be wielded to force the United States government
to concede to better terms and conditions concerning the military bases
agreement, including the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we have to
suffer all existing indignities and disrespect towards our rights as a
sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign
military bases as essentially a question of sovereignty which does
not require in-depth studies or analyses and which this forum has, as a
constituent assembly drafting a constitution, the expertise and capacity to
decide on except that it lacks the political will that brought it to existence
and now engages in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if
we reclaim, restore, uphold and defend our national sovereignty.
National sovereignty is what the military bases issue is all about. It
is only the sovereign people exercising their national sovereignty who can
design an independent course and take full control of their national
destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee report,
specifically Sections 3 and 4 on neutrality, nuclear and bases-free
country, some views stress sovereignty of the Republic and even
invoke survival of the Filipino nation and people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of the
committee report to dismantle the American bases after 1991 only show
the urgent need to free our country from the entangling alliance with
any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess expertise
to know that the so-called RP-US Bases Agreement will expire in 1991,
that it infringes on our sovereignty and jurisdiction as well as national
dignity and honor, that it goes against the UN policy of disarmament and
that it constitutes unjust intervention in our internal affairs.364
(Emphases Supplied)
The Constitutional Commission eventually agreed to allow foreign military
bases, troops, or facilities, subject to the provisions of Section 25. It is
thus important to read its discussions carefully. From these discussions,
we can deduce three legal standards that were articulated by the
Constitutional Commission Members. These are characteristics of any
agreement that the country, and by extension this Court, must ensure are
observed. We can thereby determine whether a military base or facility in
the Philippines, which houses or is accessed by foreign military troops, is
foreign or remains a Philippine military base or facility. The legal
standards we find applicable are: independence from foreign control,
sovereignty and applicable law, and national security and territorial
integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the
Constitution's drafting was aimed at asserting Philippine independence
from the U.S., as well as control over our country's territory and military.
Under the Civil Code, there are several aspects of control exercised over
property.
Property is classified as private or public.365 It is public if "intended for
public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of
similar character[,]" or "[t]hose which belong to the State, without being
for public use, and are intended for some public service or for the
development of the national wealth. "366
Quite clearly, the Agreed Locations are contained within a property for
public use, be it within a government military camp or property that
belongs to the Philippines. 1av vphi1
Once ownership is established, then the rights of ownership flow freely.
Article 428 of the Civil Code provides that "[t]he owner has the right to
enjoy and dispose of a thing, without other limitations than those
established by law." Moreover, the owner "has also a right of action
against the holder and possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of
property, even against those who hold the property. Possession, after all,
merely raises a disputable presumption of ownership, which can be
contested through normal judicial processes.367
In this case, EDCA explicitly provides that ownership of the Agreed
Locations remains with the Philippine govemment.368 What U.S. personnel
have a right to, pending mutual agreement, is access to and use of these
locations.369
The right of the owner of the property to allow access and use is
consistent with the Civil Code, since the owner may dispose of the
property in whatever way deemed fit, subject to the limits of the law. So
long as the right of ownership itself is not transferred, then whatever
rights are transmitted by agreement does not completely divest the owner
of the rights over the property, but may only limit them in accordance with
law.
Hence, even control over the property is something that an owner may
transmit freely. This act does not translate into the full transfer of
ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, we stated
that the constitutional proscription on property ownership is not violated
despite the foreign national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a
contract of use and access. Under its pertinent provisions, it is the
Designated Authority of the Philippines that shall, when requested, assist
in facilitating transit or access to public land and facilities.371 The activities
carried out within these locations are subject to agreement as authorized
by the Philippine govemment.372 Granting the U.S. operational control over
these locations is likewise subject to EDCA' s security mechanisms,
which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly
designated representative is given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S. control,
which was so feared by the Constitutional Commission. In fact, they
seem to have been the product of deliberate negotiation from the point of
view of the Philippine government, which balanced constitutional
restrictions on foreign military bases and facilities against the security
needs of the country. In the 1947 MBA, the U.S. forces had "the right,
power and authority x x x to construct (including dredging and filling),
operate, maintain, utilize, occupy, garrison and control the bases."375 No
similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military
facilities and bases has been raised by the present Constitution. Section
25 is explicit that foreign military bases, troops, or facilities shall not be
allowed in the Philippines, except under a treaty duly concurred in by the
Senate. Merely stating that the Philippines would retain ownership would
do violence to the constitutional requirement if the Agreed Locations were
simply to become a less obvious manifestation of the U.S. bases that
were rejected in 1991.
When debates took place over the military provisions of the Constitution,
the committee rejected a specific provision proposed by Commissioner
Sarmiento. The discussion illuminates and provides context to the 1986
Constitutional Commission's vision of control and independence from the
U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as
follows: "THE STATE SHALL ESTABLISH AND MAINTAIN AN
INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE
PHILIPPINES." Allow me to briefly explain, Madam President. The Armed
Forces of the Philippines is a vital component of Philippine society
depending upon its training, orientation and support. It will either be the
people's protector or a staunch supporter of a usurper or tyrant, local and
foreign interest. The Armed Forces of the Philippines' past and recent
experience shows it has never been independent and self-reliant.
Facts, data and statistics will show that it has been substantially
dependent upon a foreign power. In March 1968, Congressman Barbero,
himself a member of the Armed Forces of the Philippines, revealed top
secret documents showing what he described as U.S. dictation over the
affairs of the Armed Forces of the Philippines. He showed that under
existing arrangements, the United States unilaterally determines not
only the types and quantity of arms and equipments that our armed
forces would have, but also the time when these items are to be
made available to us. It is clear, as he pointed out, that the
composition, capability and schedule of development of the Armed
Forces of the Philippines is under the effective control of the U.S.
government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987
Constitution that would assert "independent" and "self-reliant" armed
forces. This proposal was rejected by the committee, however. As
Commissioner De Castro asserted, the involvement of the Philippine
military with the U.S. did not, by itself, rob the Philippines of its real
independence. He made reference to the context of the times: that the
limited resources of the Philippines and the current insurgency at that
time necessitated a strong military relationship with the U.S. He said that
the U.S. would not in any way control the Philippine military despite this
relationship and the fact that the former would furnish military hardware
or extend military assistance and training to our military. Rather, he
claimed that the proposal was in compliance with the treaties between
the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on
U.S. military bases on 12 September 1986, I spoke on the selfreliance
policy of the armed forces. However, due to very limited resources, the
only thing we could do is manufacture small arms ammunition. We
cannot blame the armed forces. We have to blame the whole Republic of
the Philippines for failure to provide the necessary funds to make the
Philippine Armed Forces self-reliant. Indeed that is a beautiful dream.
And I would like it that way. But as of this time, fighting an insurgency
case, a rebellion in our country - insurgency - and with very limited funds
and very limited number of men, it will be quite impossible for the
Philippines to appropriate the necessary funds therefor. However, if we
say that the U.S. government is furnishing us the military hardware,
it is not control of our armed forces or of our government. It is in
compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States
to furnish us the necessary hardware in connection with the military
bases agreement. Please be informed that there are three (3) treaties
connected with the military bases agreement; namely: the RP-US Military
Bases Agreement, the Mutual Defense Treaty and the Military Assistance
Program.
My dear Commissioner, when we enter into a treaty and we are
furnished the military hardware pursuant to that treaty, it is not in
control of our armed forces nor control of our government. True
indeed, we have military officers trained in the U.S. armed forces school.
This is part of our Military Assistance Program, but it does not mean that
the minds of our military officers are for the U.S. government, no. I am
one of those who took four courses in the United States schools, but I
assure you, my mind is for the Filipino people. Also, while we are sending
military officers to train or to study in U.S. military schools, we are also
sending our officers to study in other military schools such as in Australia,
England and in Paris. So, it does not mean that when we send military
officers to United States schools or to other military schools, we will be
under the control of that country. We also have foreign officers in our
schools, we in the Command and General Staff College in Fort Bonifacio
and in our National Defense College, also in Fort Bonifacio.377 (Emphases
supplied)
This logic was accepted in Tañada v. Angara, in which the Court ruled
that independence does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent
national economy" does not necessarily rule out the entry of foreign
investments, goods and services. It contemplates neither "economic
seclusion" nor "mendicancy in the international community." As explained
by Constitutional Commissioner Bernardo Villegas, sponsor of this
constitutional policy:
Economic self reliance is a primary objective of a developing country that
is keenly aware of overdependence on external assistance for even its
most basic needs. It does not mean autarky or economic seclusion;
rather, it means avoiding mendicancy in the international community.
Independence refers to the freedom from undue foreign control of
the national economy, especially in such strategic industries as in the
development of natural resources and public utilities.378 (Emphases
supplied)
The heart of the constitutional restriction on foreign military facilities and
bases is therefore the assertion of independence from the U.S. and other
foreign powers, as independence is exhibited by the degree of foreign
control exerted over these areas. The essence of that independence is
1âwphi1
self-governance and self-control.379 Independence itself is "[t]he state or
condition of being free from dependence, subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and
authority over Philippine facilities and locations, such that the agreement
effectively violates Section 25 of the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as
necessary for "operational control and defense." The term "operational
control" has led petitioners to regard U.S. control over the Agreed
Locations as unqualified and, therefore, total.382 Petitioners contend that
the word "their" refers to the subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities
within Agreed Locations that are necessary for their operational control or
defense, including taking appropriate measure to protect United States
forces and United States contractors. The United States should
coordinate such measures with appropriate authorities of the Philippines.
A basic textual construction would show that the word "their," as
understood above, is a possessive pronoun for the subject "they," a third-
person personal pronoun in plural form. Thus, "their" cannot be used for a
non-personal subject such as "Agreed Locations." The simple
grammatical conclusion is that "their" refers to the previous third-person
plural noun, which is "United States forces." This conclusion is in line with
the definition of operational control.
a. U.S. operational control as the exercise of authority over U.S.
personnel, and not over the Agreed Locations
Operational control, as cited by both petitioner and respondents, is a
military term referring to
[t]he authority to perform those functions of command over subordinate
forces involving organizing and employing commands and forces,
assigning tasks, designating objective, and giving authoritative direction
necessary to accomplish the mission.383
At times, though, operational control can mean something slightly
different. In JUSMAG Philippines v. National Labor Relations
Commission, the Memorandum of Agreement between the AFP and
JUSMAG Philippines defined the term as follows:384
The term "Operational Control" includes, but is not limited to, all
personnel administrative actions, such as: hiring recommendations; firing
recommendations; position classification; discipline; nomination and
approval of incentive awards; and payroll computation.
Clearly, traditional standards define "operational control" as personnel
control. Philippine law, for instance, deems operational control as one
exercised by police officers and civilian authorities over their subordinates
and is distinct from the administrative control that they also exercise over
police subordinates.385 Similarly, a municipal mayor exercises operational
control over the police within the municipal government,386 just as city
mayor possesses the same power over the police within the city
government.387
Thus, the legal concept of operational control involves authority over
personnel in a commander-subordinate relationship and does not include
control over the Agreed Locations in this particular case. Though not
necessarily stated in EDCA provisions, this interpretation is readily
implied by the reference to the taking of "appropriate measures to protect
United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have operational control
over its own forces, in much the same way that the Philippines exercises
operational control over its own units.
For actual operations, EDCA is clear that any activity must be planned
and pre-approved by the MDB-SEB.388 This provision evinces the
partnership aspect of EDCA, such that both stakeholders have a say on
how its provisions should be put into effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational control over
personnel, qualifying access to the Agreed Locations by the Philippine
Designated Authority with the phrase "consistent with operational safety
and security requirements in accordance with agreed procedures
developed by the Parties" leads to the conclusion that the U.S. exercises
effective control over the Agreed Locations.389 They claim that if the
Philippines exercises possession of and control over a given area, its
representative should not have to be authorized by a special provision.390
For these reasons, petitioners argue that the "operational control" in
EDCA is the "effective command and control" in the 1947 MBA.391 In their
Memorandum, they distinguish effective command and control from
operational control in U.S. parlance.392 Citing the Doctrine for the Armed
Forces of the United States, Joint Publication 1, "command and control
(C2)" is defined as "the exercise of authority and direction by a properly
designated commander over assigned and attached forces in the
accomplishment of the mission x x x."393 Operational control, on the other
hand, refers to "[t]hose functions of command over assigned forces
involving the composition of subordinate forces, the assignment of tasks,
the designation of objectives, the overall control of assigned resources,
and the full authoritative direction necessary to accomplish the mission."394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security
requirements in accordance with agreed procedures developed by the
Parties" does not add any qualification beyond that which is already
imposed by existing treaties. To recall, EDCA is based upon prior
treaties, namely the VFA and the MDT.395 Treaties are in themselves
contracts from which rights and obligations may be claimed or waived.396
In this particular case, the Philippines has already agreed to abide by the
security mechanisms that have long been in place between the U.S. and
the Philippines based on the implementation of their treaty relations.397
Secondly, the full document cited by petitioners contradicts the equation
of "operational control" with "effective command and control," since it
defines the terms quite differently, viz:398
Command and control encompasses the exercise of authority,
responsibility, and direction by a commander over assigned and attached
forces to accomplish the mission. Command at all levels is the art of
motivating and directing people and organizations into action to
accomplish missions. Control is inherent in command. To control is to
manage and direct forces and functions consistent with a commander's
command authority. Control of forces and functions helps commanders
and staffs compute requirements, allocate means, and integrate efforts.
Mission command is the preferred method of exercising C2. A complete
discussion of tenets, organization, and processes for effective C2 is
provided in Section B, "Command and Control of Joint Forces," of
Chapter V "Joint Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM. It
is the authority to perform those functions of command over subordinate
forces involving organizing and employing commands and forces,
assigning tasks, designating objectives, and giving authoritative direction
over all aspects of military operations and joint training necessary to
accomplish the mission. It should be delegated to and exercised by the
commanders of subordinate organizations; normally, this authority is
exercised through subordinate JFCs, Service, and/or functional
component commanders. OPCON provides authority to organize and
employ commands and forces as the commander considers necessary to
accomplish assigned missions. It does not include authoritative direction
for logistics or matters of administration, discipline, internal organization,
or unit training. These elements of COCOM must be specifically
delegated by the CCDR. OPCON does include the authority to delineate
functional responsibilities and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant
command, while command and control is the overall power and
responsibility exercised by the commander with reference to a mission.
Operational control is a narrower power and must be given, while
command and control is plenary and vested in a commander. Operational
control does not include the planning, programming, budgeting, and
execution process input; the assignment of subordinate commanders; the
building of relationships with Department of Defense agencies; or the
directive authority for logistics, whereas these factors are included in the
concept of command and control.400
This distinction, found in the same document cited by petitioners,
destroys the very foundation of the arguments they have built: that EDCA
is the same as the MBA.
c. Limited operational control over the Agreed Locations only for
construction activitites
As petitioners assert, EDCA indeed contains a specific provision that
gives to the U.S. operational control within the Agreed Locations during
construction activities.401 This exercise of operational control is premised
upon the approval by the MDB and the SEB of the construction activity
through consultation and mutual agreement on the requirements and
standards of the construction, alteration, or improvement.402
Despite this grant of operational control to the U.S., it must be
emphasized that the grant is only for construction activities. The narrow
and limited instance wherein the U.S. is given operational control within
an Agreed Location cannot be equated with foreign military control, which
is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction
activities, operational control over the Agreed Location is vested in the
Philippine authorities. This meaning is implicit in the specific grant of
operational control only during construction activities. The principle of
constitutional construction, "expressio unius est exclusio alterius," means
the failure to mention the thing becomes the ground for inferring that it
was deliberately excluded.403 Following this construction, since EDCA
mentions the existence of U.S. operational control over the Agreed
Locations for construction activities, then it is quite logical to conclude
that it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the
commissioners was total control, to the point that the foreign military
forces might dictate the terms of their acts within the Philippines.404 More
important, limited control does not mean an abdication or derogation of
Philippine sovereignty and legal jurisdiction over the Agreed Locations. It
is more akin to the extension of diplomatic courtesies and rights to
diplomatic agents,405 which is a waiver of control on a limited scale and
subject to the terms of the treaty.
This point leads us to the second standard envisioned by the framers of
the Constitution: that the Philippines must retain sovereignty and
jurisdiction over its territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not
to establish a permanent military presence or base in the territory of the
Philippines." Further on, it likewise states the recognition that "all United
States access to and use of facilities and areas will be at the invitation of
the Philippines and with full respect for the Philippine Constitution and
Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be
seen in light of Philippine sovereignty and jurisdiction over the Agreed
Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is
the conferment by law of power and authority to apply the law.407 Article I
of the 1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal
waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the
Philippines that the U.S. forces are allowed to access and use.408 By
withholding ownership of these areas and retaining unrestricted access to
them, the government asserts sovereignty over its territory. That
sovereignty exists so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with
respect to the Agreed Locations.410 Hence, Philippine law remains in force
therein, and it cannot be said that jurisdiction has been transferred to the
U.S. Even the previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with Philippine
authorities.411
Jurisprudence bears out the fact that even under the former legal regime
of the MBA, Philippine laws continue to be in force within the bases.412
The difference between then and now is that EDCA retains the primary
jurisdiction of the Philippines over the security of the Agreed Locations,
an important provision that gives it actual control over those locations.
Previously, it was the provost marshal of the U.S. who kept the peace
and enforced Philippine law in the bases. In this instance, Philippine
forces act as peace officers, in stark contrast to the 1947 MBA provisions
on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on the
Agreed Locations must not impair or threaten the national security and
territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of
technology has essentially rendered the prior notion of permanent military
bases obsolete.
Moreover, military bases established within the territory of another state
is no longer viable because of the alternatives offered by new means and
weapons of warfare such as nuclear weapons, guided missiles as well as
huge sea vessels that can stay afloat in the sea even for months and
years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military
aircraft but also of military personnel and facilities. Besides, vessels are
mobile as compared to a land-based military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited
scope. It does not allow, for instance, the re-establishment of the Subic
military base or the Clark Air Field as U.S. military reservations. In this
context, therefore, this Court has interpreted the restrictions on foreign
bases, troops, or facilities as three independent restrictions. In accord
with this interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a
military base is.415 While the source is not authoritative, petitioners make
the point that the Agreed Locations, by granting access and use to U.S.
forces and contractors, are U.S. bases under a different name.416 More
important, they claim that the Agreed Locations invite instances of attack
on the Philippines from enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the
realm of law, but of politics and policy. At the very least, we can say that
under international law, EDCA does not provide a legal basis for a
justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed
Locations simply because of the presence of U.S. personnel. Article 2(4)
of the United Nations Charter states that "All Members shall refrain in
their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations."418 Any
unlawful attack on the Philippines breaches the treaty, and triggers Article
51 of the same charter, which guarantees the inherent right of individual
or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question,
international humanitarian law standards prevent participants in an armed
conflict from targeting non-participants. International humanitarian law,
which is the branch of international law applicable to armed conflict,
expressly limits allowable military conduct exhibited by forces of a
participant in an armed conflict.419 Under this legal regime, participants to
an armed conflict are held to specific standards of conduct that require
them to distinguish between combatants and non-combatants,420 as
embodied by the Geneva Conventions and their Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of
international law at the University of Leicester, noted that there is no legal
consensus for what constitutes a base, as opposed to other terms such
as "facilities" or "installation."422 In strategic literature, "base" is defined as
an installation "over which the user State has a right to exclusive control
in an extraterritorial sense."423 Since this definition would exclude most
foreign military installations, a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of
"base" is one that does not fulfill a combat role. He cites an example of
the use of the territory of a state for training purposes, such as to obtain
experience in local geography and climactic conditions or to carry out
joint exercises.424 Another example given is an advanced communications
technology installation for purposes of information gathering and
communication.425 Unsurprisingly, he deems these non-combat uses as
borderline situations that would be excluded from the functional
understanding of military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a
building or person is presumed to be protected, unless proven
otherwise.427 Moreover, the principle of distinction requires combatants in
an armed conflict to distinguish between lawful targets428 and protected
targets.429 In an actual armed conflict between the U.S. and a third state,
the Agreed Locations cannot be considered U.S. territory, since
ownership of territory even in times of armed conflict does not change.430
Hence, any armed attack by forces of a third state against an Agreed
Location can only be legitimate under international humanitarian law if it
is against a bona fide U.S. military base, facility, or installation that
directly contributes to the military effort of the U.S. Moreover, the third
state's forces must take all measures to ensure that they have complied
with the principle of distinction (between combatants and non-
combatants).
There is, then, ample legal protection for the Philippines under
international law that would ensure its territorial integrity and national
security in the event an Agreed Location is subjected to attack. As EDCA
stands, it does not create the situation so feared by petitioners - one in
which the Philippines, while not participating in an armed conflict, would
be legitimately targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of
allowing the presence of U.S. personnel within our territory and is
therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed"
locations, areas, or facilities within the military base of another sovereign
state is nothing new on the international plane. In fact, this arrangement
has been used as the framework for several defense cooperation
agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense
Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to
their military bases.437 That access is without rental or similar costs to the
U.S.438 Further, U.S. forces are allowed to undertake construction
activities in, and make alterations and improvements to, the agreed
locations, facilities, or areas.439 As in EDCA, the host states retain
ownership and jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific military-
related rights to the U.S. For example, under Article IV(l) of the US.-
Bulgaria Defense Cooperation Agreement, "the United States forces x x x
are authorized access to and may use agreed facilities and areas x x x
for staging and deploying of forces and materiel, with the purpose of
conducting x x x contingency operations and other missions, including
those undertaken in the framework of the North Atlantic Treaty." In some
of these agreements, host countries allow U.S. forces to construct
facilities for the latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is nothing
new. In Lim v. Executive Secretary, the Court already upheld the Terms
of Reference of Balikatan 02-1, which authorized U.S. forces to set up
"[t]emporary structures such as those for troop billeting, classroom
instruction and messing x x x during the Exercise." Similar provisions are
also in the Mutual Logistics Support Agreement of 2002 and 2007, which
are essentially executive agreements that implement the VFA, the MDT,
and the 1953 Military Assistance Agreement. These executive
agreements similarly tackle the "reciprocal provision of logistic support,
supplies, and services,"442 which include "[b ]illeting, x x x operations
support (and construction and use of temporary structures incident to
operations support), training services, x x x storage services, x x x during
an approved activity."443 These logistic supplies, support, and services
include temporary use of "nonlethal items of military equipment which are
not designated as significant military equipment on the U.S. Munitions
List, during an approved activity."444 The first Mutual Logistics Support
Agreement has lapsed, while the second one has been extended until
2017 without any formal objection before this Court from the Senate or
any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous to
those in the aforementioned executive agreements. Instead of authorizing
the building of temporary structures as previous agreements have done,
EDCA authorizes the U.S. to build permanent structures or alter or
improve existing ones for, and to be owned by, the Philippines.445 EDCA is
clear that the Philippines retains ownership of altered or improved
facilities and newly constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed to use
facilities and areas for "training; x x x; support and related activities; x x x;
temporary accommodation of personnel; communications" and agreed
activities.447
Concerns on national security problems that arise from foreign military
equipment being present in the Philippines must likewise be
contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the
VFA already authorizes the U.S. to import into or acquire in the
Philippines "equipment, materials, supplies, and other property" that will
be used "in connection with activities" contemplated therein. The same
section also recognizes that "[t]itle to such property shall remain" with the
US and that they have the discretion to "remove such property from the
Philippines at any time."
There is nothing novel, either, in the EDCA provision on the
prepositioning and storing of "defense equipment, supplies, and
materiel,"448 since these are sanctioned in the VFA. In fact, the two
countries have already entered into various implementing agreements in
the past that are comparable to the present one. The Balikatan 02-1
Terms of Reference mentioned in Lim v. Executive Secretary specifically
recognizes that Philippine and U.S. forces "may share x x x in the use of
their resources, equipment and other assets." Both the 2002 and 2007
Mutual Logistics Support Agreements speak of the provision of support
and services, including the "construction and use of temporary structures
incident to operations support" and "storage services" during approved
activities.449 These logistic supplies, support, and services include the
"temporary use of x x x nonlethal items of military equipment which are
not designated as significant military equipment on the U.S. Munitions
List, during an approved activity."450 Those activities include "combined
exercises and training, operations and other deployments" and
"cooperative efforts, such as humanitarian assistance, disaster relief and
rescue operations, and maritime anti-pollution operations" within or
outside Philippine territory.451 Under EDCA, the equipment, supplies, and
materiel that will be prepositioned at Agreed Locations include
"humanitarian assistance and disaster relief equipment, supplies, and
materiel. "452 Nuclear weapons are specifically excluded from the materiel
that will be prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases
the threat to our national security. If anything, EDCA increases the
likelihood that, in an event requiring a defensive response, the Philippines
will be prepared alongside the U.S. to defend its islands and insure its
territorial integrity pursuant to a relationship built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language of the
MDT only refers to mutual help and defense in the Pacific area.453 We
believe that any discussion of the activities to be undertaken under EDCA
vis-a-vis the defense of areas beyond the Pacific is premature. We note
that a proper petition on that issue must be filed before we rule thereon.
We also note that none of the petitions or memoranda has attempted to
discuss this issue, except only to theorize that the U.S. will not come to
our aid in the event of an attack outside of the Pacific. This is a matter of
policy and is beyond the scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say that the
initial impression of the facility adverted to does appear to be one of
those that require a public franchise by way of congressional action under
Section 11, Article XII of the Constitution. As respondents submit,
however, the system referred to in the agreement does not provide
telecommunications services to the public for compensation.454 It is clear
from Article VIl(2) of EDCA that the telecommunication system is solely
for the use of the U.S. and not the public in general, and that this system
will not interfere with that which local operators use. Consequently, a
public franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons within
Philippine territory is entirely speculative. It is noteworthy that the
agreement in fact specifies that the prepositioned materiel shall not
include nuclear weapons.455 Petitioners argue that only prepositioned
nuclear weapons are prohibited by EDCA; and that, therefore, the U.S.
would insidiously bring nuclear weapons to Philippine territory.456 The
general prohibition on nuclear weapons, whether prepositioned or not, is
already expressed in the 1987 Constitution.457 It would be unnecessary or
superfluous to include all prohibitions already in the Constitution or in the
law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which
under the law must originate from Congress. This allegation ignores
jurisprudence on the government's assumption of tax liability. EDCA
simply states that the taxes on the use of water, electricity, and public
utilities are for the account of the Philippine Government.458 This provision
creates a situation in which a contracting party assumes the tax liability of
the other.459 In National Power Corporation v. Province of Quezon, we
distinguished between enforceable and unenforceable stipulations on the
assumption of tax liability. Afterwards, we concluded that an enforceable
assumption of tax liability requires the party assuming the liability to have
actual interest in the property taxed.460 This rule applies to EDCA, since
the Philippine Government stands to benefit not only from the structures
to be built thereon or improved, but also from the joint training with U.S.
forces, disaster preparation, and the preferential use of Philippine
suppliers.461 Hence, the provision on the assumption of tax liability does
not constitute a tax exemption as petitioners have posited.
Additional issues were raised by petitioners, all relating principally to
provisions already sufficiently addressed above. This Court takes this
occasion to emphasize that the agreement has been construed herein as
to absolutely disauthorize the violation of the Constitution or any
applicable statute. On the contrary, the applicability of Philippine law is
explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously
protested by noted personalities in Philippine history arises not so much
from xenophobia, but from a genuine desire for self-determination,
nationalism, and above all a commitment to ensure the independence of
the Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the
Philippines of his Constitutional prerogatives in respect of foreign affairs.
They cannot cripple him when he deems that additional security
measures are made necessary by the times. As it stands, the Philippines
through the Department of Foreign Affairs has filed several diplomatic
protests against the actions of the People's Republic of China in the West
Philippine Sea;462 initiated arbitration against that country under the United
Nations Convention on the Law of the Sea;463 is in the process of
negotiations with the Moro Islamic Liberation Front for peace in Southern
Philippines,464 which is the subject of a current case before this Court; and
faces increasing incidents of kidnappings of Filipinos and foreigners
allegedly by the Abu Sayyaf or the New People's Army.465 The Philippine
military is conducting reforms that seek to ensure the security and safety
of the nation in the years to come.466 In the future, the Philippines must
navigate a world in which armed forces fight with increasing
sophistication in both strategy and technology, while employing
asymmetric warfare and remote weapons.
Additionally, our country is fighting a most terrifying enemy: the backlash
of Mother Nature. The Philippines is one of the countries most directly
affected and damaged by climate change. It is no coincidence that the
record-setting tropical cyclone Yolanda (internationally named Haiyan),
one of the most devastating forces of nature the world has ever seen hit
the Philippines on 8 November 2013 and killed at least 6,000 people.467
This necessitated a massive rehabilitation project.468 In the aftermath, the
U.S. military was among the first to extend help and support to the
Philippines.
That calamity brought out the best in the Filipinos as thousands upon
thousands volunteered their help, their wealth, and their prayers to those
affected. It also brought to the fore the value of having friends in the
international community.
In order to keep the peace in its archipelago in this region of the world,
and to sustain itself at the same time against the destructive forces of
nature, the Philippines will need friends. Who they are, and what form the
friendships will take, are for the President to decide. The only restriction
is what the Constitution itself expressly prohibits. It appears that this
overarching concern for balancing constitutional requirements against the
dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it

remains consistent with existing laws and treaties that it purports to
implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.